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Reasonable accommodations and housing

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Massachusetts Law Reform Institute and Housing Discrimination Testing Program at Suffolk University Law School
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By law, housing providers, including public housing authorities and owners of multifamily housing, must make reasonable accommodations and reasonable modifications that:

  • give people with physical or mental disabilities access to housing, or 
  • help them to stay in housing.

If you or someone in your household has a disability, these laws can give you tools that can help you get housing, or make the housing you already have easier to use with your disability.

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what-is
What is a reasonable accommodation?

If you have a disability, you may be able to get what is called a reasonable accommodation or reasonable modification.

A reasonable accommodation means that a housing authority or subsidized development makes certain changes in rules, policies, or services so that you can have full use of your home.1

A change to the physical structure of the apartment, such as a ramp for a wheelchair, is generally referred to as a reasonable modification.

Your right to a reasonable accommodation means that sometimes housing providers, including housing authorities and subsidized landlords, need to make exceptions and do things differently to enable a person with a disability to participate more easily in a housing program. You can request an accommodation or modification: 

  • when you are applying for housing, 
  • before moving into housing, or 
  • during your tenancy.
type-housing
What types of housing can I live in to get reasonable accommodations?

You are protected against housing discrimination and have the right to ask for reasonable accommodations or modifications when you are applying for or living in most types of housing. This includes:

  • public housing, 
  • privately-owned subsidized housing, and 
  • non-subsidized private housing.2

For privately-owned housing, these laws do not apply if you live in:

  • an owner-occupied building with 2 units (for state laws),
  • an owner-occupied building with 4 or fewer units (for federal laws), or
  • a single-family home, if the landlord: 
    • owns 3 or fewer single-family homes and
    • does not use a real estate professional in renting out the home.
definition
What is considered a disability?

People who have disabilities are generally protected against housing discrimination.3 But the definition of who has the right to a reasonable accommodation and the definition of who is protected against direct discrimination are different.

A person with a disability is entitled to a reasonable accommodation if they have a:

If you cannot claim a disability under the definition above, you can still be protected against direct disability discrimination (such as being refused housing because of your disability) if you fall into one of these additional categories: 

  • You have a record or history of such an impairment, or 
  • You have been perceived to have or are regarded as having such an impairment.5   

Note: 

These definitions of “disabled” are for discrimination issues and reasonable accommodations. To qualify for elderly/disabled housing or specialized Section 8 programs for people with disabilities, there is a different definition. See "Are there special rules for seniors and people with disabilities?" in our article on eligibility.

Physical or mental impairment

A physical or mental impairment can be almost any kind of mental or physical condition, illness, or disorder. For example:

  • depression, 
  • cancer, 
  • cerebral palsy, 
  • learning disorders, 
  • alcoholism, 
  • developmental or intellectual disabilities, 
  • attention deficit hyperactivity disorder (ADHD), or 
  • deafness.6 

Substantial limitation in major life activities

There is no set definition that says when an impairment substantially limits a major life activity. Major life activities include, but are not limited to: 

  • caring for one’s self, 
  • doing manual tasks, 
  • walking, 
  • seeing, 
  • hearing, 
  • speaking, 
  • breathing, 
  • learning, and 
  • working.7 

There may be other activities that should also be considered major life activities.

A housing authority or subsidized landlord has to decide on a case-by-case basis whether an impairment causes a “substantial limitation” to a major life activity.8 If you get disability benefits, such as SSI, SSDI or EAEDC, they will probably consider you to be disabled.

If you do not get disability benefits, the best way to establish your disability is to get your doctor or medical care provider to write a letter. In the letter, they should:

  • identify your impairment,
  • say that your impairment substantially limits you in a major life activity, and
  • say which major life activity is impaired and how it substantially limits your functioning. 

They do not need to list your specific diagnosis for you to get a reasonable accommodation. 

Other protections from discrimination

You can also be protected from discrimination for the reasons below, even if you do not meet the requirements to get a reasonable accommodation based on a disability.

Having a record or history of an impairment

Having a record or history of an impairment means that, even if you do not currently meet the definition of disabled, you may be protected against discrimination if in the past you had a disability.9 For example, you may be functioning well now, but in the past had a history of psychiatric hospitalizations. If a landlord knows this or suspects this and discriminates on this basis, they would be acting unlawfully.

Perceived as having an impairment

If a housing authority or subsidized landlord treats you as having an impairment, regardless of whether you do or do not, this would be discrimination. 

substance
Is substance use disorder or alcoholism considered a disability?

Illegal drug use

If you currently use illegal drugs, you are not considered to be disabled.10 But if you have had a history of substance use disorder, and are no longer using drugs, you are protected under state and federal discrimination laws. Substance abuse disorder is the uncontrolled use of alcohol or drugs despite harmful consequences.

You may be able to ask for a reasonable accommodation if you:

  • Have successfully completed a rehabilitation program;
  • Have otherwise been rehabilitated successfully; or
  • Are participating in a treatment or self-help program.11

If you are applying for state public housing, they will assume you are a current user if you have used illegal drugs in the past 12 months. You can try to show them that you have permanently stopped all illegal use of controlled substances.12

If you are applying to any other state or federal housing programs, there is no set time frame for determining when someone is or is not a current user. The courts have generally used a “reasonableness” standard for determining current use.13 But many housing authorities have their own time frames to determine eligibility for housing. For example, a housing authority may have a policy (usually unwritten) that you will be denied if you were actively using illegal drugs within the last 2 years. But if you can show that you have been successfully rehabilitated, it may be unlawful for the housing authority to apply this policy to you.14
 

Alcohol use

Under both state and federal anti-discrimination laws, you can be considered disabled and protected if you are substantially limited in one or more major life activities as a result of alcoholism.15

But under federal law you most likely will not be protected against discrimination if:

  • your current use of alcohol would prevent you from meeting your tenancy responsibilities; 
  • your use of alcohol would threaten the health or safety of other tenants;16 or
  • the housing authority has “reasonable cause to believe that a household member’s abuse or pattern of abuse of alcohol may threaten the health, safety or right to peaceful enjoyment of the premises by other residents.”17

It is important to note that a housing authority may not deny you housing solely for being an alcoholic unless there is evidence that the alcoholism is likely to interfere with other residents.

reasonable
When is an accommodation "reasonable"?

If you have a disability and need a change to a rule or to a physical space, you can ask for a reasonable accommodation or modification. The accommodation is considered reasonable when it does not impose an undue administrative and financial burden on a housing authority or subsidized landlord or require a housing authority to completely change a housing program.18

There is no limit to the type of accommodation you can request, as long as it meets this definition of “reasonable.” For example, accommodations or modifications that are considered reasonable and are required under the law include:

  • Allowing an assistance animal when there is a “no pets” rule;19
  • Lowering the cabinets for someone in a wheelchair; 
  • Putting grab bars in bathrooms; 
  • Putting ramps in where there are 5 or fewer steps; and 
  • Putting in fire alarms that flash for people who are Deaf or hard of hearing.20

In other cases, there are no specific rules, and it is up to you to advocate that a particular request is reasonable.21 See examples of accommodations that may be considered reasonable.

For physical changes to your apartment, such as putting in a ramp, the landlord must allow you to make the change but may not have to pay for it. You may have to find your own funding to pay for the modifications. See Who pays for a physical modification?

writing
Do I need to put my request for reasonable accommodation in writing?

If you need a reasonable accommodation, you should tell your landlord or prospective landlord that you have a disability and need a particular kind of modification or accommodation either to get into housing or to remain in housing. At some point you may also need to show that you will be able to meet your responsibilities as a tenant if you get the accommodation.22

Although you do not need to put your request for a reasonable accommodation in writing, it is better to do so.23 This is because:

  • Your request will probably be treated more seriously. 
  • If your landlord refuses to make an accommodation and you bring a fair housing claim to court later, you will have to prove both:
    • that your landlord knew or should have known that you were disabled, and 
    • that you requested an accommodation at some point. Putting a request into writing makes this easier to prove.

Some housing authorities have reasonable accommodation request forms. See a sample letter to request an accommodation (coming soon). A housing authority cannot not require you to use a particular form. But it will usually speed up the process if you do use the forms requested by the particular housing authority.24

when
When must I make the request for an accommodation?

Make your request as soon as possible. In most cases, for you to get a reasonable accommodation the landlord must be aware that you have a disability25 and that you need an accommodation.26

Note: 

If you are being evicted, you can request an accommodation at any point: before trial, at trial, or up until you are actually evicted.27 See How can a reasonable accommodation help me prevent an eviction? to learn more.

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Learn more about how a reasonable accommodation request can help in housing.

Endnotes
1:

24 C.F.R. § 100.204; 24 C.F.R. § 9.103; and G.L. c. 151B, § 4(7A)(2). This applies to applicants and existing tenants.

2:

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, applies to housing programs receiving federal funds. See also HUD PIH Notice 2010-26, available at https://www.hud.gov/sites/documents/DOC_8993.pdf. Even if an apartment or program is not federally funded (i.e., private or state-funded), the federal Fair Housing Act will apply except for owner-occupied buildings with four or fewer units or single-family homes, if the owner owns no more than three such units and does not use a real estate professional in the rental or sale of the unit. 42 U.S.C. § 3603(b); 24 C.F.R. § 100.10(c)(2).

State law applies to most types of housing except two-family owner-occupied dwellings. G.L. c. 151B, §§ 1, 4(6) and 4(7).

3:

See generally: Fair Housing Act, 42 U.S.C. § 3601 et seq.; 24 C.F.R. § 100; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 24 C.F.R. §§ 8 and 9; Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; 28 C.F.R. § 35; Massachusetts Anti-Discrimination law: G.L. c. 151B, §4; 804 C.M.R. § 2.03; Massachusetts Constitution: Amendment Article 114; Massachusetts Equal Rights Act, G.L. c. 93, § 103.

4:

See 42 U.S.C. § 3602; 24 C.F.R. § 100.201; 42 U.S.C. § 12102(2); 29 U.S.C. § 705(9)(B) and (20)(B); G.L. c. 151B, § 1(17). The Massachusetts Anti-Discrimination statute, the federal Fair Housing Amendments Act, and Section 504 of the Rehabilitation Act and all implementing regulations use the term “handicapped” instead of “disability.” The Americans with Disabilities Act uses the term “disability.” The two terms have the same meaning under the law; however, the term disability is preferred due to negative history and associations with the term handicapped.

5:

42 U.S.C. § 12102(2).

6:

There are some exceptions. Massachusetts Commission Against Discrimination guidelines for employment discrimination on the basis of disability, while not binding in housing cases, may be helpful. For example, the guidelines state that the following are not qualifying impairments: “environmental, cultural, and economic disadvantages; homosexuality, bisexuality and other sexual orientation; normal pregnancy; personality traits that are not caused by mental or psychological disorders; normal deviations in height, weight or strength; the current, illegal use of a controlled substance; or the nondependent use of alcohol.” Available at https://www.mass.gov/doc/mcad-guidelines-on-disability-discrimination-in-employment/download 

7:

24 C.F.R. § 8.3, under definition of “individual with handicaps”; 29 C.F.R. § 1630.2(j)(1) (which states that an impairment or group of impairments is substantially limiting if it prevents or significantly restricts the duration, manner, or conditions under which an individual can perform one or more major life activities); G.L. c. 151B, § 1(20); 804 C.M.R. § 2.03(2).

8:

An impairment will still be considered disabling even if it is episodic or in remission if it would substantially limit a major life activity when active. 42 U.S.C. §12102(4)(D), as amended by the ADA Amendments Act of 2008. In addition, a determination whether an impairment substantially limits a major life activity shall be made without regard to ameliorative measures. Ameliorative measures include, but are not limited to, aids such as medication, medical supplies, prosthetics, hearing aids, mobility devices, etc. See fuller list with exclusions at 42 U.S.C §12102(E); see also Department of Housing and Community Development, Public Notice: 2009-11, p. 2 fn. 1; Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001), for analysis of applicability to state anti-discrimination law.

9:

42 U.S.C. § 12102(2); 24 C.F.R. § 100.201(c).

10:

29 U.S.C. § 705(20)(C); 42 U.S.C. § 3602(h); 24 C.F.R. §§ 9.103 and 100.201; G.L. c. 151B, § 17(c).

11:

29 U.S.C. § 705(20)(C); 24 C.F.R. § 9.103.

12:

760 C.M.R. § 5.08(1)(k).

13:

The Americans with Disabilities Act (ADA) Conference Report states that “the provision is intended to apply to a person whose illegal use of drugs occurred recently enough to justify a reasonable belief that the person’s use is current.” See H.R. Conf. Rep. No. 101-596. See also the preamble to Title II regulations at 28 C.F.R. § 35.131; 24 C.F.R. § 9.103 (definition of current illegal use of drugs under Section 504 of the Rehabilitation Act of 1973).

14:

Decisions regarding “current use” should be based on facts related to the individual applicant. See United States v. Southern Mgmt. Corp., 955 F.2d 914, 923 (4th Cir. 1992) (a person who was drug free for one year and involved in ongoing professional rehabilitation was protected by federal law); Fowler v. Borough of Westville, 97 F. Supp. 2d 602, 608-609 (D.N.J. 2000) (plaintiff was not excluded from disability protections as a current user of illegal drugs where only use was four months after incident of alleged discrimination); see also Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 605 (1994) (tenant who was convicted for possession of a controlled substance with the intent to distribute was not a protected disabled tenant under federal law despite being drug free and enrolled in a drug rehabilitation program at the time of trial).

15:

24 C.F.R. § 100.201(a)(2); G.L. c. 151B, § 1 (17).

16:

24 C.F.R. § 8.3 (definition of “individual with handicaps”). Note that HUD interprets the Fair Housing Amendments Act in a manner consistent with Section 504 of the Rehabilitation Act of 1973. See 54 Federal Register 3231, 3245 (Jan. 23, 1989).

17:

Federal public housing: 24 C.F.R. § 960.204(b); Section 8: 24 C.F.R. §§ 982.551(m) and 982.553(a)(3).

18:

24 C.F.R. § 8.33.

19:

See Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020 (1989)

20:

804 C.M.R. § 2.03(4).

21:

Where state regulations set forth a specific requirement, advocates can use that to argue that a similar requirement in a parallel federal program should be deemed reasonable.

22:

Andover Hous. Auth. v. Shkolnik, 443 Mass. 300 (2005) (tenant must establish that he is “otherwise qualified” when requesting an accommodation in the eviction context). But see Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (Mass. 2009).

23:

See Joint Statement of the Department of Housing and Urban Development and the Department of Justice entitled “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, p. 10 (oral request for accommodation is sufficient to trigger duty of landlord), available at https://www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf . In addition, see Department of Housing and Community Development Public Housing Notice: 2009-11, p. 6 (in state public housing, a request for a reasonable accommodation/modification does not have to be made in writing), available at https://www.mass.gov/files/documents/2017/11/06/09-11.pdf 

24:

    See Joint Statement of the Department of Housing and Urban Development and the Department of Justice entitled “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, pp. 10-11 (housing authority may not require that a request for a reasonable accommodation be made on a particular form) available at https://www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf 

25:

In Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009), the Court found that the landlord must have known the tenant was disabled where, among other things, he was a non-elder living in elderly/disabled housing, he received Social Security Disability Income (SSDI) benefits and the landlord regularly recertified his income.

26:

See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) (at least in federally financed public housing, a disabled tenant must, if his landlord is not already aware, inform the landlord that he has a disability and must request some accommodation); see also Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 313 (2005) (tenant has requested an accommodation where the tenant informs the landlord he is a disabled tenant and that he is being denied an equal opportunity to use and enjoy a dwelling).

27:

See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009) (tenant met his obligation to request an accommodation by making such request to the judge at eviction trial); Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997) (landlord has continuing obligation to provide accommodation up to the date of the eviction); Cobble Hill v. McLaughlin, 1999 Mass. App. Div. 166; Douglas v. Kriegsfeld Corporation, 884 A.2d 1109 (D.C. Cir. 2005) (court finds that a reasonable accommodation defense is available at any time before a judgment of possession is entered); but see Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 313 (2005) (court states in what can be characterized as dicta that the purpose of the administrative process prior to eviction would be thwarted if the tenant is allowed to raise different defenses at different stages of eviction proceedings).

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