Q: I‘ve developed a painful skin condition that requires treatment with large amounts of very hot water. The water in my apartment isn‘t hot enough and it takes too long to heat up the amount of water I need, so I‘ve asked the landlord to install a new water heater or give me a device that makes hot water at the sink. He‘s refused, saying, "You don‘t look disabled to me." I thought landlords were legally required to respond to a request like this — aren‘t they? –Sherry S.
A: To figure out whether your landlord is legally required to install (or let you install) a new water heater, you’ll need to understand the Fair Housing Act and Fair Housing Amendments Act, or "FHAA" (42 U.S. Code § 3604 and following). Both you and your landlord appear to be mistaken in at least a couple of key areas.
First, the FHAA protects only those who have a disability as defined by the law: a physical or mental disability that substantially limits one or more major life activities. Unless someone has an obvious disability (for example, the person is blind or uses a wheelchair), a landlord is entitled to ask for a third-party professional’s opinion. Most people get this documentation of their disability from their doctors, therapists or other professionals (documents such as Social Security Disability Insurance cards will also suffice).
Once you present your landlord with credible evidence that you have a disability, that issue is resolved, no matter what your landlord’s personal observations may be. However, you’ll still have to show that the action you’re seeking — a new water heater — is necessary in order to allow you to live safely and comfortably in the rental. Again, this is a matter for the third-party professional to decide, and your landlord must grant the request if it is reasonable (it must not seriously impair his ability to run his business). Unless you’re in Massachusetts or living in a federally subsidized building (or in some states, a state-subsidized building), you will have to pay for the modification.
Q: I and other members of my apartment association recently had an interesting conversation concerning the ability of illegal immigrants to pursue discrimination claims. I think that because these people are here illegally, they aren‘t entitled to a free lawyer supplied by the state, even if they have a good case. My friends think that our state‘s attorney general or the federal prosecutors will take the case anyway, because the point is to prevent landlords from discriminating. What do you think? —Nathan J.
A: As you point out, tenants may bring discrimination claims by filing a complaint with a state fair housing agency or the state prosecutor, or by contacting the federal Department of Housing and Urban Development or the Department of Justice. If any of these outfits determine the case has merit, they will pursue it and settle or litigate, at no charge to the tenant. Even if the case doesn’t proceed, the complaining tenant doesn’t pay for the lawyers who work on it.
Your friends’ theory is a novel one, perhaps grounded on the belief that because illegal immigrants aren’t entitled to government welfare, disability or health services, they shouldn’t be entitled to government legal services, either. While it’s true that the federal 1996 welfare reform legislation did place welfare, disability and health services out of reach, it didn’t mention legal services. For support, your friends would have to argue that legal representation is part of the legislation’s denial to illegal immigrants of "any other similar benefit for which payments or assistance are provided to an individual." That’s a stretch, although one public official — Nebraska’s Attorney General — advanced it in May 2008, when defending his refusal to prosecute what appeared to be a blatant case of discrimination based on race or ethnicity, which happened to be brought by illegal immigrants. Interestingly, an illegal immigrant will fare better when facing discrimination on the job — the Equal Employment Opportunity Commission will prosecute and enforce antidiscrimination laws without regard to immigration status.
Step back a moment to consider whether it’s in everyone’s best interests if state or federal prosecutors do not represent illegal immigrants when their civil rights are denied. Although it is possible for wronged tenants to hire private attorneys to handle their cases, most do not and would not, mainly because finding an attorney and paying up front for costs is beyond their means. This is precisely why the government has made it possible to easily file a fair housing complaint (one can do so online). If we deny government representation to illegal immigrants, most law-breaking landlords will get away with their misdeeds, and may continue to discriminate against others. Remember, the landlord in the Nebraska case was discriminating on the basis of race or ethnicity, not immigration status, and having gotten away with it once, there’s every reason to expect that he’ll do it again. The next targets may be perfectly legal residents, and while they will presumably have access to a government lawyer, it would have been cheaper, more efficient and just to have taught that landlord his lesson the first time.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@sandbox.inman.com.
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