Virginia Poverty Law Center (VPLC) and Central Virginia Legal Aid (CVLAS) Successfully Working Against Housing Discrimination

The federal Fair Housing Act prohibits discrimination in housing throughout the United States on the basis of disability.  One important facet of this protection against discrimination is that the Fair Housing Act can require a landlord to make a “reasonable accommodation” in its policies or practices when the landlord’s usual rules or procedures would exclude or pose a hardship for a person with a disability.  For example, a property that does not allow pets or animals may need to waive that rule for a tenant with a service dog.[1]  Or a landlord who makes parking spaces available on a first-come, first-served basis may need to designate an appropriate parking space for a resident with a mobility impairment.[2]

Another type of reasonable accommodation that landlords are sometimes asked to make are adjustments in the admission policies for new applicants.  For example, a landlord who ordinarily requires new applicants to have income of three-times the monthly rent may be required to admit a tenant who (for reasons related to a disability) makes less than that—so long as that applicant can still show through other ways he can indeed afford the housing.[3]

Some people with disabilities—especially psychiatric disorders or other mental health issues—may acquire criminal records due to disability-related symptoms.  Because most landlords screen rental applicants for criminal history, these disability-related criminal records can disqualify those applicants under common rental criteria.  Thus, another type of reasonable accommodation that makes sense in the admission context is for a landlord to overlook disability-related criminal history, provided the applicant shows that she has received appropriate treatment for the mental illness or disability that has made the criminal behavior unlikely to be repeated.

Unfortunately, a federal court in North Carolina ruled in 2009 that landlords need not consider accommodation requests that involve overlooking disability-related criminal history, even when the underlying cause of that criminal activity has been treated and is unlikely to reoccur.[4]  This controversial decision has long made reasonable accommodations for disability-related criminal behavior unavailable in the rental admissions context, not only in North Carolina but also in Virginia and in many other states.

VPLC and CVLAS filed a lawsuit challenging the harsh Evans decision in the summer of 2017.  The case was filed on behalf of a Louisa, Virginia, woman and her disabled adult son after the son was denied permission to move into his mother’s two-bedroom apartment.  The reason for the denial was the son’s 2016 conviction for simple indecent exposure, which occurred when he removed his clothing in a public street while off his medications.  After his arrest, the son was sent to Western State Mental Hospital, where he received in-patient mental health treatment for approximately two months.  He then continued with treatment after his release.

Based on the connection between his mental health disability and the criminal record, together with the successful treatment, the son requested that the apartment complex overlook the conviction as a reasonable accommodation.  But the complex gave no consideration to the request before declining to make the accommodation.  This made the Fair Housing Act case necessary.

Soon after the case was filed, the apartment complex moved for dismissal—citing the Evans decision and asserting it owed no legal duty to consider a reasonable accommodation for disability-related criminal history.  Last week, however, the federal court in Charlottesville rejected the complex’s arguments, declined to follow the Evans case, and denied the motion to dismiss.[5]  In so doing, the court issued an important decision that upholds this important aspect of fair housing protection and transforms the legal landscape for people struggling to obtain rental housing despite disability-related criminal history.

[1] See Dept. of Housing & Urban Development, FHEO-2013-01, p. 3 (Apr. 25, 2013).

[2] See HUD-DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act, p. 6 (May 17, 2004).

[3] See Giebeler v. M&B Associates, 343 F.3d 1143, 1158 (9th Cir. 2003).

[4] See Evans v. UDR, Inc., 644 F.Supp.2d 675, 685 (E.D.N.C. 2009).

[5] See Simmons v. T.M. Associates Management, Inc. ___ F.Supp.3d ___: 2018 WL 882396 (W.D.Va., Feb. 14, 2018).