Fair Housing Law for Persons with Disabilities

 

TABLE OF CONTENTS

 

An Introduction to this Manual                                                                                          

 

A Note on New Jersey Law                                                                                                 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14.     Can a Landlord Refuse to Rent to Me Because I Receive Welfare or Other Government Entitlements?                                                                    
   

 

 

 

 

 

 

 

 

 

 

 

 

Note: All footnotes are superscripted numbers. These footnote indicators link to the footnotes sites at the end of the page. Following the footnote site there is a "return" which will bring you back to just after the footnote indicator in the document.

 




An Introduction to this Manual

 

This manual will review the state and federal laws that protect persons with disabilities from housing discrimination.  While the manual cannot replace advice from a lawyer, its footnotes refer to key statutory and regulatory law and to some of the cases that interpret these provisions.  Thus, the curious may use the manual as a starting place for independent inquiry.  Towards this end, the manual uses the standard legal abbreviations described below in this section and, under Question 2, guides you to the full texts of the law.

 

The manual is organized in a question-and-answer format.  Every effort has been made to pose questions which experience suggests are either commonly asked or the answers to which are important to know.

 

Abbreviations for cases:

 

U.S. - United States Supreme Court Reports.  Thus, Bragdon v. Abbott, 524 U.S. 624 (1998), refers to a case named, “Bragdon v. Abbott,” that was decided in 1998 by the United States Supreme Court and that can be found in volume 524 of the United States Supreme Court Reports at page 624.  U.S. Supreme Court cases are also published in the Supreme Court Reporter, the abbreviation for which is S.Ct..  Thus, you may find Bragdon v. Abbott cited with two “parallel” citations, like this:  Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196 (1998).

 

F.2d or F3d - Federal Circuit Courts of Appeals.  Thus, Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3rd Cir. 1996) refers to a case that was decided in 1996 by the Third Circuit Court of Appeals and can be found in volume 89 of the Federal Reporter, third series at page 1096.

 

F.Supp or F.Supp.2d - Federal trial courts.  Thus, Leshner v. McCollister’s Transp. Systems, Inc., 113 F.Supp.2d 689 (D.N.J. 2000), refers to a case that was decided in the year 2000 by the Federal District Court of New Jersey (D.N.J.) and which can be found in volume 113 of the Federal Supplement, second series, at page 689.

 

N.J. - New Jersey Supreme Court.  Thus, 175 N.J. 1 (2002) refers to a case that was decided in 2002 by the New Jersey Supreme Court and that can be found in volume 175 of the New Jersey Supreme Court Reports at page 1.

 

N.J. Super. - New Jersey Superior Court.  Thus, 325 N.J.Super. 78 (App. Div. 1999) refers to a case that was decided in 1999 by the Appellate Division (App. Div.) of the New Jersey Superior Court and that can be found in volume 325 of the New Jersey Superior Court Reports at page 78.  267 N.J.Super. 125 (L. Div. 1992)  refers to a case that was decided in 1992 by the Law Division (L. Div.) of the New Jersey Superior Court and can be found in volume 267 of the New Jersey Superior Court Reports at page 125.

 

References to pages within a case follow the initial page reference and are separated from it by a comma.  Thus  Bragdon v. Abbott, 524 U.S. 624, 629 (1998) refers to a matter discussed at page 629 of Bragdon v. Abbott.

 

Abbreviations for Statutes:

 

U.S.C.A. - United States Code Annotated.  Thus, 42 USCA §3604 refers to Title 42 of the United States Code Annotated at section 3604.

 

N.J.S.A. - New Jersey Statutes Annotated.  Thus, N.J.S.A. 10:5-4.1 refers to New Jersey Statutes Annotated, Title 10, Chapter 5, Section 4.1.

 

Abbreviations for Regulations

 

C.F.R - Code of Federal Regulations.  Thus, 24 C.F.R. §100.202 refers to Title 24 of the Code of Federal Regulations, section100.202.

 

N.J.A.C. - New Jersey Administrative Code.  Thus, N.J.A.C. 13:13-3.4(b) refers to Title 13, chapter 13, subchapter 3, section 4, paragraph (b) of the New Jersey Administrative Code

 

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A Note on New Jersey Law

 

New Jersey’s fair housing laws for persons with disabilities are among the strongest in the nation.  New Jersey goes beyond federal fair housing standards to offer persons with disabilities particularly effective protection against housing discrimination.Comment  Sections with the italicized subheading, “New Jersey Goes Further,” highlight the ways in which the state’s laws offer greater protection than federal law.
        
The manual is organized in a question-and-answer format.  Every effort has been made to pose questions that experience suggests are either commonly asked or the answers to which are important to know.

 

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1. What Laws Protect Persons with Disabilities Against Housing Discrimination?

 

On the national level, the federal Fair Housing Act is the primary source of protection.1It goes beyond protection of persons with disabilities to outlaw discrimination based on race, color, religion, sex, familial status or national origin.2The Fair Housing Act offers much the same protections as does New Jersey law, though in some ways New Jersey’s protections are stronger.

 

Three state laws protect persons with disabilities against housing discrimination. The first is the New Jersey Law Against Discrimination, usually referred to as simply the LAD.3It is the state’s comprehensive civil rights law, and as such prohibits discrimination on the basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, nationality, sex, and, of course, disability.4

 

The second state law that protects persons with disabilities from housing discrimination is much narrower than the LAD, but nonetheless of great significance. It is the Uniform Construction Code Act, or UCCA. The UCCA requires the state’s Department of Community Affairs to establish general construction standards for all types of buildings, including residences. In particular it instructs the Department to adopt a “barrier free subcode” to assure that buildings are accessible to persons with physical disabilities. The Barrier-free Subcode adopted by the Department covers “[m]ulti-family residential buildings with four or more dwelling units in a single structure.”5

 

The Law Against Discrimination and the Uniform Construction Code Act intersect. While the UCCA authorizes the Department of Community Affairs to adopt a barrier-free subcode, requires architects and developers to abide by the subcode, and local construction officials to enforce it, it does not establish the right of persons with disabilities to sue when the subcode is violated. Fortunately, however, the LAD does.6
The third state law that shelters persons with disabilities from housing discrimination is New Jersey’s Municipal Land Use Law, which prohibits municipalities from imposing special zoning requirements on group homes and other community residences for persons with disabilities.7

 

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2. Where Can I Find The Statutes, Regulations and Cases that Protect Persons with Disabilities from Housing Discrimination?

 

To find the federal Fair Housing Act on line go to the home page of the National Fair Housing Advocate, http://www.fairhousing.com/index.cfm. In the left-hand column, under “Legal Research,” click on “Statutes and Regs.” The first listing under “Statutes, regulations and articles,” will be “US Code Title 42, §§3601 et seq. - The Fair Housing Act.” Click on this, and you will be able to pull up the entire Act or its individual sections.

 

For the regulations promulgated pursuant to the federal Fair Housing Act, go to http://www.gpoaccess.gov/cfr/index.html. This site has the entire body of federal regulatory law, known as the Code of Federal Regulations, or C.F.R. The second and third items on the left side of the page will enable you to search for federal regulations by browsing, by searching, or by entering a citation that you already have.

 

Both the New Jersey Law Against Discrimination and the State’s Uniform Construction Code Act may be found in New Jersey Statutes Annotated (N.J.S.A). Local libraries often have New Jersey Statutes Annotated. Alternatively you can turn to the state legislature’s website. Go to www.njleg.state.nj.us/. In the left-hand column scroll down to the heading, “Laws and Constitution.” Click on “Statutes.” This will bring you to an expandable table of contents. To find the text of a given statutory provision, such as N.J.S.A. 10:5-12.4, the provision of the Law Against Discrimination that makes it discriminatory to build inaccessible multifamily housing, scroll down to and click on the plus (+) icon to the left of “Title 10 Civil Right.” Then scroll down to and click the number of the statute, in this instance “10:5-12.4.” The full text of the statute will pop onto your screen.

 

The regulations adopted pursuant to the Law Against Discrimination appear to be among those numerous New Jersey regulations that are not available on the internet. Write to the New Jersey Division on Civil Rights, 140 E. Front St., 6th Floor, P.O. Box 089, Trenton, New Jersey 08625-0089.

 

If your curiosity level is high, you may want a complete copy of New Jersey’s Barrier-free Subcode. But before you do that, you should understand what the Subcode consists of. Thus, the means of obtaining the Subcode are presented in the last footnote of Question 15: “What Housing Must be Accessible to Persons with Disabilities?,” below.

 

Cases decided by New Jersey’s appellate courts (the Appellate Division and the State Supreme Court) for approximately the last decade can be found at the web site of Rutgers Law School, Camden. Go to http://lawlibrary.rutgers.edu/. In the left-hand column, click on “New Jersey Legal Resources.” In the expanded list click on “N.J. Appeals/Tax Decisions.” This will bring you to a page entitled, “Opinions of the New Jersey Courts.” If you want to find one of the cases cited in this manual, and thus have the citation for the case (e.g. 325 N.J.Super. 78 ), click the box that reads, “Locate a decision by citation or docket number.” Go to the “Find Case by Citation” box. Type the volume number in the small box for “Volume.” Chose “N.J.Super.” in the small “Reporter” box, and type the page number in the small “page” box. Click on “Submit Form,” and you will have the full text of the opinion.

 

Unfortunately, no web site provides anything more than the last few weeks of opinions from the state’s trial courts.
Many federal cases are available at http://www.findlaw.com. Click on the “Search Cases and Codes” tab. Scroll down the center of the page to “Case Law.”

 

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3. Who is Protected Against Housing Discrimination on the Basis of Disability?

 

With one exception, only those persons who fall within the law’s definitions of disability are protected against housing discrimination on the basis of disability. New Jersey’s definition is broader and therefore protects more people than does the federal definition.

 

The federal Fair Housing Act uses the term “handicap,” and defines it as “a physical or mental impairment which substantially limits one or more . . . major life activities.” Even if you don’t actually have such an impairment, you will be considered handicapped if you have a record of such an impairment or are regarded as having such an impairment by the person who is discriminating against you.8The definition encompasses persons who are HIV+ or have AIDS.9And even if you do not fall within the terms of the definition, you are protected if you have been discriminated against because of your association with a person who does.10However, you are not considered handicapped if corrective measures mitigate the effects of your impairment to the point that no major life activity is substantially impaired. For example, if glasses improve your vision so that you can perform all major life activities without substantial limitation, you are not covered by the definition even if, when you take your glasses off, you are nearly blind.11 Persons currently engaged in illegal use of, or are addicted to, a controlled substance are not included in the definition of handicap,12 and transvestites are not considered to have a handicap solely because of their transvestitism.13

 

New Jersey Goes Further: New Jersey’s definition of the term “disability” is much broader than the federal definition of “handicap.” While the state’s definition is inelegantly written, it boils down to this: any “physical disability,14 infirmity, malformation or disfigurement” that is caused by “bodily injury, birth defect or illness” qualifies as a protected disability. Also qualifying is “any mental, psychological or developmental disability” caused by an “anatomical, psychological, physiological or neurological [condition]” that either “prevents the normal exercise of any bodily or mental functions” or is simply “demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.”15The definition specifically mentions the following as constituting disabling conditions: epilepsy, any degree of paralysis, amputation, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, lack of physical coordination, physical reliance on a service or guide dog or on a wheelchair or other remedial appliance or device, AIDS or HIV infection. Confirming the broad sweep of the Law Against Discrimination’s definition is the absence of the requirement found in the federal Fair Housing Act that the disabling condition substantially limit one or more major life activities.16Of at least equal significance, no court has adopted an interpretation of the state definition that takes into account corrective measures that mitigate the effects of one’s disability. So, for example, impaired eyesight will be judged on the basis of your vision as measured when you are not wearing glasses. Moreover, regulations promulgated pursuant to the Law Against Discrimination bring within the definition of disability anyone “who has been [disabled] at any time,” thereby paralleling, and perhaps going farther than, the federal definition, which requires that a person “have a record” of disability.17Nor does the Law Against Discrimination preclude a finding of disability that is based solely on transvestitism. Like the federal definition, you will be considered disabled, and therefore covered by the Law Against Discrimination if the person whom you allege is discriminating against you acted on the belief that you have a disability.18

 

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4. What if I Don’t Have a Disability? Am I Still Protected Against Disability Discrimination?

 

Yes, you are, at least in certain instances. As just noted, under the federal and state definitions of disability you are considered disabled or handicapped if you have a history of disability or if you are discriminated against by others acting on an incorrect belief that you have a disability. But even beyond this, the prohibition against disability discrimination protects anyone who is harmed by discrimination because they are associated with a person who has a disability. For example, if you do not have a disability, but your child does, a landlord or home seller may not discriminate against you in the rental or sale of a dwelling because of your child’s disability. You are protected even when the discrimination is based on the disability of friends who may come to visit.19 In a like manner, a home owner can’t refuse to sell a house to a social service organization because the organization will use the house as a group home for persons with disabilities. If you experience such “associational” discrimination, you may sue even though you do not have a disability yourself.

 

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5. In What Aspects of Obtaining and Using Housing am I Protected?

 

You are protected in all aspects of obtaining and using housing. You must be shown, rented and sold housing the same as anyone else. For example, a landlord or seller of a dwelling cannot represent to persons with disabilities that a dwelling is unavailable when, in fact, it is available. Landlords and sellers cannot misrepresent the price of a dwelling because you, another prospective occupant, or anyone associated with you or with a prospective occupant has a disability. The price, terms, and conditions of rental or sale must be the same for you as for everyone else. Once you come to live in the dwelling you must have available to you the same services and facilities that are available to everyone else.20

 

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6. Does Fair Housing Law for Persons with Disabilities Protect Them from Discrimination by Condominium Associations and Cooperatively Owned Apartments?

 

A simple yes. The protections discussed in this manual apply to your dealings with all types of dwelling owners and operators.

 

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7. Can a Landlord or Someone Who is Selling a Home Ask About My Disability?

 

The answer is an emphatic no, but with a reasonable exception. It is unlawful for landlords or home sellers to ask about the disability of a prospective tenant or buyer. It is also illegal to ask about the disability of anyone associated with a prospective tenant or buyer (e.g., a prospective tenant’s relatives or friends who might visit the apartment). The prohibition against asking about disability extends to inquiries concerning the nature or severity of a disability as well as its existence.21

 

The sole exception occurs when housing is offered preferentially to persons with disabilities. Thus, under the federal Fair Housing Act, when housing is made available only to persons with disabilities or with particular disabilities, disability-related inquiries may be made to determine eligibility for the housing. The same is true when housing is available on a preferential basis to persons with disabilities.22

 

Interestingly, although New Jersey’s Law Against Discrimination generally prohibits questions “concerning” disability, it permits them when “required by an agency of local, State or Federal government.”23 This exception to the general prohibition may be both broader and narrower than the Fair Housing Act’s exception to the same prohibition. On the one hand, private landlords and sellers offering housing or housing priorities to persons with disabilities cannot ask about qualifying disabilities unless the offer is part of a government program. On the other hand, so long as it is required by a government program, landlords and sellers can ask about disability even if the questions are not aimed at determining eligibility for housing or for housing priorities for persons with disabilities. The federal and state law combine in such a way that landlords and sellers can ask only those questions that both bodies of law permit. Thus, questions to determine eligibility for specialized housing or housing priorities may only be asked if the housing or priority is part of a government program (permitted by the Law Against Discrimination), and any other questions regarding disability are banned (by the Fair Housing Act) even if they are part of a government program.

 

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8. What Questions Can a Landlord or Someone Who is Selling a Home Ask?

 

You can be asked the same questions that anyone else is asked. For example, you can be asked about your ability to meet the financial requirements of ownership or tenancy.24  Thus, landlords and sellers can inquire as to your credit worthiness. Of course, if such inquiries are made only of persons with disabilities and not of all potential renters and buyers, then the landlord or seller is discriminating.
You can also be asked questions to determine if you are a current illegal drug abuser or addict of a controlled substance, or if you have been convicted of the illegal manufacture or distribution of a controlled substance.25

 

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9. Can the Landlord Charge Me an Extra Fee or Increase My Security Deposit Because I Need Special Equipment Such as a Wheelchair?

 

No. The fact that you use special equipment such as a wheelchair or need a hospital bed cannot be the basis for increasing your security deposit or for charging you any other type of fee that is not charged to persons without disabilities.26 

 

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10. What if My Special Equipment Damages the Apartment?

 

Although a landlord may not increase your security deposit or charge an extra fee because you require special equipment such as a wheelchair, scooter, or hospital bed, he or she may require you to pay for “specific damage” done to the apartment as a result of your use of the special equipment.27  

 

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11. Can I Have Rules, Policies, Practices and Services Changed Because of My Disability?

 

Yes. Landlords and others, such as condominium associations, must accommodate your need for a change of rules, policies, practices, and services as long as the accommodation may be necessary to afford you an equal opportunity to use and enjoy a dwelling and the accommodation is reasonable.28  This is the “reasonable accommodation” mandate that is central to virtually all disability rights laws. Whether the change you want is reasonable will depend on whether it imposes an undue burden on the landlord or other person or entity, and on whether granting the change would fundamentally alter the nature of that person’s or entity’s business.

 

A common instance of reasonable accommodation arises when persons with mobility-impairing disabilities request assignment of a parking space close to their apartment. The landlord must grant the request even though parking spaces are normally available on a first-come-first-served basis, unless the landlord can show that granting the request would be an undue burden on the apartment complex or its residents.29  
An example of an accommodation request that would fundamentally alter what a landlord does is a request that the landlord provide counseling services or medical assistance.

 

You may request reasonable accommodation with respect to rules, policies, practices or services that have to do with either your individual dwelling or with common grounds and facilities such as swimming pools or laundry rooms.

 

Application of the reasonable accommodation mandate is not limited to your dealings with landlords. It applies to anything that has to do with residential matters. Thus, municipalities must “change, waive, or make exceptions in their zoning rules to afford people with disabilities the same opportunity to housing as those who are without disabilities.”30  See section 17.

 

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12. How Must My Guide or Service Dog or Animal be Treated?

 

Persons with disabilities who have guide or service dogs or other guide or service animals are entitled to lease or buy housing accommodations without discrimination. You may not be charged extra, and rules prohibiting pets are not applicable to guide or service animals. You are, however, liable for any damages to the premises done by your animal.31  

 

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13. Must My Guide or Service Dog or Animal be Certified?

 

Neither the New Jersey Law Against Discrimination nor the federal Fair Housing Act specify the training that a service animal must have. However, before either body of law can be invoked, it is evident that the animal must be able to perform tasks that are useful to the person it serves, so as to distinguish it from a mere pet.32  

 

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14. Can a Landlord Refuse to Rent to Me Because I Receive Welfare or Other Government Entitlements?

 

New Jersey Goes Further: No, but only because New Jersey law says so. The federal Fair Housing Act permits landlords to discriminate on the basis of a tenant’s source of income. Court’s that have considered the issue generally reason that discrimination on this basis is not the same as discrimination based on disability.33  However, in New Jersey landlords cannot refuse to rent to you because you receive federal, state or local financial assistance, including medical assistance or housing subsidies. Nor can landlords impose different terms of tenancy upon you.34 This is the rule regardless of whether you have a disability.

 

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