This year marks the 35th anniversary of the signing of the federal Fair Housing Act, an occasion the Bush Administration commemorated with a proclamation urging all Americans to promote equal housing opportunities and a press release highlighting the federal government’s efforts to advance fair housing goals.

Like most fair housing discussions, the announcement emphasized the laws barring discrimination against racial and ethnic minorities and families with children. But the Fair Housing statute also contains important protections for people with physical and emotional disabilities. And these provisions, especially those affecting emotionally troubled tenants, are coming into play increasingly in rental housing and community association settings, as landlords, property managers, and association trustees grapple with the combined effects of an aging population, scattered families, and public policies that have left gaping holes in the traditional safety nets for the mentally ill.

A recent case – one of many like this in which I have been involved – illustrates this trend and the challenges it poses. An apartment manager responding to reports of a woman screaming in her apartment found the tenant standing naked in the middle of a room, holding burning dollar bills in her hands. All of the stove burners were on; a hair dryer (plugged in) rested near a shower in which the water was running, and one of the tenant’s pillows was on fire. This was not the first time the manager had responded to a complaint about this tenant, nor the first time that he had found dangerous conditions in her unit. In a previous incident, all of the stove burners again were on and the wooden cabinets in the kitchen were smoking.

Reasonable Accommodations

While the potential risks this tenant’s behavior creates, for herself and other tenants, are obvious, the required response is somewhat less apparent. The 1989 amendments to the Fair Housing Act require landlords and community associations to offer “reasonable accommodations” in their rules, policies, practices, or services, when necessary to provide residents with disabilities “an equal opportunity to use and enjoy a dwelling.” As a practical matter, managers and owners confronting these situations must find a way to balance an emotionally troubled resident’s interest in remaining in his/her unit, against the obligation to ensure the health and safety of other residents and to protect their right to the “quiet enjoyment” of their units.

The law contemplates an interactive process, in which the landlord, the property manager (or the trustees in a community association setting) and the resident discuss the problem and arrive at a mutually acceptable solution. Residents must document that they have a disability (defined as “a physical or mental impairment that substantially limits one or more major life activities”) and must show that the accommodation requested is reasonably related to their disability. For example, someone with an incapacitating fear of heights might request a ground floor apartment, but could not insist on a close-in parking space as a reasonable accommodation for their disability. Landlords or trustees in turn, must offer the requested accommodation if it will allow the resident to remain, as long as the required changes do not create an undue financial or administrative burden.

While you can wait for the resident to propose a solution, a proactive response is usually best. The resident may reject your idea, but it is important to be able to demonstrate to a judge (the next step if you can’t work out an agreement) that you have tried to accommodate the resident’s needs. A judge will almost certainly order you to offer an accommodation, so it makes a lot more sense to do that at the beginning of the process, before you’ve spent thousands of dollars in legal fees, only to have a judge order you to go back and offer the accommodation you should have proposed in the first place.

Some Creative Responses

In most cases, this interactive process usually comes down to lawyers and managers trying to find creative solutions to seemingly intractable problems. And these efforts succeed more often than not. A classic example is a Massachusetts case about 20 years ago in which an apartment tenant was banging incessantly on the walls with a bat and yelling politically incorrect obscenities through an open window in what was a racially diverse neighborhood. The solution, approved by the court, was to seal the window and give the tenant a nerf baseball bat, accommodating the tenant’s need to express rage without subjecting other tenants to the accompanying noise or to the risk of a violent response from neighborhood residents offended by the tenant’s epithets.

In several years of dealing with these problems, I’ve seen many other success stories. A recent one involved an elderly tenant in a multi-story apartment building, who indiscriminately buzzed in anyone who rang his bell. Prostitutes, drug dealers, and a neighborhood pimp (who beat up other apartment residents) knew that if they wanted access, all they had to do was ring this guy’s bell. We proposed as an accommodation disconnecting the buzzer in this tenant’s apartment. He could still see visitors through the lobby camera and talk to them through the intercom, but he could not buzz them in.

Another situation involved an elderly tenant who was convinced people were stealing items from his apartment. He complained continually to management, to other tenants, and to government agencies about the problem. When they didn’t respond, he put crime scene tape around the property – upsetting to existing tenants, and hardly a good ad for anyone thinking of renting an apartment in the building. We drafted an agreement requiring the tenant to stop harassing other tenants, to stop putting tape (or anything else) in common areas, and to be evaluated by a doctor. As long as he complies with the agreement, he can remain in his unit; however if he violates any of the provisions, we will use his default as the basis for seeking a court-ordered eviction.

Court Intervention

While court intervention is usually a last resort, it may be the best initial response in situations where competing interests seem equal and are difficult to resolve – for example, a dispute between a mentally ill tenant, who says he must smoke to control anxiety, and an asthmatic tenant in the adjacent unit, who says the smoke is threatening her health. Given that kind of conflict, the best approach might be to seek a declaratory judgment, essentially asking the court to tell us what to do.

The courts — and the Housing Courts in particular, because of their expertise and resources in this area — can be extremely helpful in crafting solutions to difficult problems. Stephen Marcus, a partner in my firm, recalls a case several years ago involving an elderly couple living in a very expensive condominium. Although self-sufficient in many respects, they were forgetful and would regularly leave pots or pans on the stove or in the oven for hours, triggering fire and smoke alarms and creating a serious risk that they might set their unit – and the rest of the building – on fire.

Unable to locate any family members (always a good first response), the association manager sought help from local social service agencies, also to no avail. So Stephen filed a complaint with the Housing Court, which turned out to be exactly the right thing to do. The judge ordered locks installed on the oven and stove and directed the couple to hire a caretaker who would be responsible for preparing their meals – and who would have the only copy of the key.

The standard procedure in dealing with an emotionally disabled tenant is to draft an agreement describing the accommodation offered and outlining the actions required of the landlord or the community association and the resident. If the resident violates the terms of the agreement, the next step in an apartment would be to seek an eviction. The remedy in a community association is more complicated, because you can’t simply “evict” someone from a unit the individual owns. However, it is possible to obtain a court order prohibiting a resident from occupying his/her unit. The legal basis for this is the provision in the Condominium Act that makes a unit owner’s right to possession subject to compliance with the condominium by-laws, and the by-laws typically contain a provision barring noxious or offensive behavior by residents.

A Midget in the Walls

We have used that mechanism a few times in the past, but only in extreme cases. A recent one involved a unit owner who was convinced that a Chinese midget was living in the walls of the unit above his and who became infuriated because the association manager was refusing to feed this unauthorized (and invisible) occupant. This situation was more serious than it sounds, because the resident actually threatened to kill the manager for mistreating the midget. Based on those threats, the court issued an injunction barring the owner temporarily from his unit. He eventually obtained a note from his doctor explaining his disability and the association allowed him to return, but under an agreement that barred him from the common areas and essentially required him to remain in his unit. The resident eventually violated the agreement, had continued encounters with the manager and other owners, and, as a result, is now going to have to sell his unit.

The law generally requires a reasonable accommodation, and we certainly tried to find one in this case. But the statute includes an important exception for situations in which the resident poses a threat to others. These situations are not always clear cut, but the courts have provided some guidance, making it clear that the threat must be real and based on objective evidence – medical testimony, the resident’s behavior, or both – rather than on an assumption that the resident might pose a threat in the future. The existence of a disability is not, in itself, sufficient to prove that a resident poses a potential threat. You don’t actually have to wait for a disturbed resident to hurt others or damage their property, but you do need a basis for the fear that they might.

A California court had no trouble perceiving a clear and direct threat in the behavior of a tenant, who fought consistently with other residents, chased children through the halls with a knife, listened to loud, vulgar music, and made inappropriate sexual comments to anyone in hearing distance. Another court found a tenant’s repeated failure to close the building’s security doors, verbal attacks on other tenants, and display of “I hate you signs” equally threatening.

On the other hand, in Massachusetts, the Hampden Housing court in 1989 blocked the eviction of a tenant who “spat, kicked walls, threw trash in common areas, posted threatening signs, made throat-slitting gestures, and threatened to attack tenants and security guards.” The court accepted the explanation of the tenant (who was deaf) that his inability to communicate with others triggered his outbursts, and ordered the landlord to develop accommodations that would allow the individual to remain in the unit.

Sometimes Nothing Works

As that case illustrates, you may have to offer accommodations even to residents who pose a potential threat, unless you can show that there are no reasonable measures you could implement that would eliminate or “acceptably minimize” the threat to other residents.

Fortunately, these extreme situations are more the exception than the rule, and there is tremendous satisfaction in finding solutions that do not require removing an emotionally troubled resident from his/her home. But sometimes, even the best intentions and the best efforts aren’t enough. I dealt with one of those no-win situations recently involving a disabled and seriously disturbed veteran who fell behind in his rent. The problem, he explained at his eviction hearing, was that “people keep breaking into my apartment. They circumcised me while I slept and they chopped off my finger,” he told the judge, holding up his hand, with all fingers intact.

The property manager, who wanted to help, called the Veterans Administration, which sent a caseworker out to investigate. But because the tenant was well-groomed and had food in his refrigerator, he passed the VA definition of “capable of living independently.” As a result, the case worker said, there was nothing the VA could do unless the tenant became homeless. That was ultimately the solution, if you can call it that. We obtained a court order for the tenant’s eviction (based on nonpayment of rent) and a constable ultimately had to break down the door and evict him forcibly. The outcome was horrible for the tenant and everyone else involved, including the property manager, who was weeping on the curb during the eviction. In this case, we failed and the system failed. There was, literally, nothing else we could do.