The NYSPA Report: Recovery and the Federal Fair Housing Act

This issue of Behavioral Health News focuses on “the vital role of housing in the recovery process.” We know that stable housing is important to individuals seeking treatment and that recovery is possible when a person’s basic need for safety and housing are met. Having somewhere safe and warm to live (both literally and figuratively) is fundamental to our mental health and wellbeing. The following article was written by Seth Stein, Esq., the Executive Director of the New York State Psychiatric Association, and his colleague Robert Schonfeld, Esq.

The Federal Fair Housing Act (“FHA”) can be used to obtain housing for persons with a mental disability or recovering from alcoholism and/or substance abuse. It can be applied against landlords and condominium and coop boards who refuse to allow such persons to reside in housing or impose special or unnecessary rules or restrictions on such persons. Likewise, it can be applied against zoning rules or building codes that exclude such persons.

A person is covered under the FHA if that person has “a physical or mental impairment which substantially limits one or more of such person’s major life activities, a record of having such an impairment, or being regarded as having such an impairment.” (42 USC 3602 (h).) The statute does not cover persons who are currently using an illegal controlled substance or are addicted to an illegal controlled substance or anyone who was convicted of the illegal manufacture or distribution of a controlled substance. (42 USC 3602 (h), 3607(b)(4).) The statute also does not apply to persons “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” (42 USC 3604(f)(9).)

With regard to landlords and condominium and cooperative boards, the FHA prohibits those entities from refusing to lease or approve applications on the grounds of a mental disability or recovery from alcoholism and/or substance abuse. (42 USC 3604(f)(1), (2).) The FHA also prohibits those entities from imposing special requirements on persons covered by the FHA, such as any requirement that persons covered by the FHA must disclose their medical records when other prospective renters or purchasers are not required to make the same disclosure. (42 USC 3604(f)(2), Cason v. Rochester Housing Authority, 748 F.Supp. 1002 (W.D.N.Y. 1990.) The FHA also requires landlords and condominium and cooperative boards to make reasonable accommodations in their rules to allow a person with a mental disability or recovering from alcoholism and/or substance abuse to use the housing. (42 USC 3604(f)(3)(B.) For example, if a person with a mental disability needs a pet because of a mental disability and the building at issue has a “no pet” rule, the landlord or board must allow that person to have a pet where it would be reasonable to do in spite of the “no pet” rule. (Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995); Crossroad Apartments v. Leboo, 578 NYS2d 1004 (City Ct. 1991).

With regard to zoning authorities and building inspectors, those persons may not exclude persons with mental disabilities or recovering from alcoholism and/or substance abuse from residential neighborhoods or place unnecessary and burdensome requirements on such housing. (42 USC 3604(f)(1),(2). Laws excluding such persons from residential neighborhoods, laws limiting the number of unrelated persons with disabilities who could live together, laws placing spacing limitations between residences for persons with disabilities, “neighborhood notification” laws and laws requiring special registrations and inspections of housing for such persons have been invalidated by the courts under the FHA. (Human Resource Research v. County of Suffolk, 687 F.Supp.2d 237 (E.D.N.Y. 2010). Indeed, we won a case annulling a local Suffolk County law that would have limited the number of people recovering from alcoholism and substance abuse from living together, placing spacing requirements on such residences from each other as well as a neighborhood notification requirement, and imposing unnecessary registration and inspection requirements on those residences. (Id.)

Laws that are, on their face, discriminatory against persons covered by the FHA as well as actions taken with discriminatory motives violate the FHA. (MHANY Management v. County of Nassau, 819 F.3d 581(2d Cir. 2016); Human Resource Research, supra.) While entities who discriminate often do not express discriminatory views against persons with disabilities, those entities can be found to have acted in an intentionally discriminatory manner if, by their actions, they treat persons with disabilities differently from non-disabled persons. (MHANY Management, supra.) Even if such entities have no discriminatory animus against persons with disabilities, if they react in response to people who do have such animus, they could also be held to be in violation of the FHA. (Id.)

As stated above, housing entities and municipalities must make a reasonable accommodation in their rules and laws to allow housing for people with disabilities. (42 USC 3604(f)(3)(B).) Also, if a housing entity or a municipality has a rule or policy that negatively impacts on people with disabilities more than non-disabled persons, that rule or policy may also be violative of the FHA. (Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D.N.Y. 1993).) For example, we won a lawsuit that barred a town from prohibiting a home on the ground that the residents (people recovering from alcoholism and/or substance abuse) were transients in a zoning district that prohibited transient residency. (Id.) We were able to show that a law prohibiting transient residency had a greater impact on people with disabilities because of their disabilities, and that keeping these people out of the neighborhood served no legitimate governmental purpose. (Id.)

A person who is injured by a discriminatory action can either file an action in court (42 USC 3613.) or file a complaint with the United States Department of Housing and Urban Development (“HUD”) (42 USC 3610.). HUD will investigate the complaint and will pursue a remedy if it finds that there is probable cause for the complaint. (42 USC 3610(g)(2).) It is also noted that New York State also has an anti-discrimination law and a complaint can be filed with the New York State Division of Human Rights as well (N.Y. Executive Law 296.).

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