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Defending Against Evictions Under the Fair Housing Act (FHA)

Navigate through FHA eviction cases effectively with this comprehensive roadmap. Learn about reasonable accommodations, tenant rights, and strategies for FHA defense.

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Defending Against Evictions Under the Fair Housing Act (FHA)

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  1. Roadmap to FHA Eviction Cases By Meghan Carter, Equal Justice Works Fellow and Charles Petrof, Legal Assistance Foundation (LAF) October 2011

  2. Background • The Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq., is a civil rights statute. (Title VIII of the Civil Rights Act of 1968.) • Congress extended the FHA’s protection to include persons with disabilities in the Fair Housing Act Amendments of 1988 (FHAA). • Similar statutes not covered in this training include: • Section 504 of the Rehabilitation Act (29 U.S.C. § 794) • Americans with Disabilities Act (42. U.S.C. § 12101, et seq.) • Illinois Human Rights Act (775 ILCS 5/3-102.1(C))

  3. Reasonable Accommodation Mandate of the FHA • Under the FHA, discrimination includes refusal to makereasonable accommodations to rules, practices, or services when the accommodation is “necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). • Even in the context of eviction, if it is possible for a landlord to alter its rules so that a tenant with a disability can remain in the housing, and it is not unduly burdensome, the landlord must make the accommodation thereby preserving the tenancy.

  4. Reasonable Accommodations in Practice • Inability to comply with some neutral rule; or need more time. • Missed Recertifications • Clutter (mixed) • Past incidents • Unpleasant habits. But see Groner v. Golden Gate Gardens Apts., 250 F.3d 1039 (6th Cir. 2001). • Fires • Drugs (past use) • Additional services • Physical modifications • Parking Spaces • Live-in Aide • Transfers • Seeing eye and companion animals

  5. Tenant must prove: • the tenant(or her associate) has a disability; • the LL knew or should reasonably be expected to know of the disability; • the accommodation of the disability may be necessary to afford the person an equal opportunity to use and enjoy the dwelling; • the accommodation is reasonable; and • the LL refused to make the requested accommodation. • See DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); Oconomowoc Res. Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002).

  6. Housing Provider Defense: “Direct Threat” • FHA does not require “a dwelling be made available to an individual 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 U.S.C. § 3604(f)(9). • Prior incidents offered for showing that a tenant constitutes a threat must be relevant, recent, and must form the basis of the decision to evict. SeeWirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866 (1st Dist. 1999). • Housing provider must attempt accommodation before evicting because tenant is a direct threat. Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1125 (D.C. 2005).

  7. How to use the FHA to defend against an Eviction • Put the Reasonable Accommodation (“RA”) request together. • Make a RA request under the FHA in writing to opposing counselwith a deadline. • After the deadline has passed, if the accommodation has not been granted, file your affirmative defense and counterclaim based on the violation of the FHA. • Supplement your discovery with questions regarding the landlord’s treatment of the RA letter. 

  8. Brainstorming the RA Request • Think about the root of the problem that your client currently faces that is threatening eviction, and see who can come together to help client overcome the problem. • With your client’s approval, you should reach out to family members, social workers, and doctors for your client. • Make sure you have a medical release on hand from your client that authorizes you to speak with medical professionals.

  9. The Importance of Having a Knowledgeable Professional • Not a legal requirement • Important for many reasons, including: • gain buy-in from judiciary, • demonstrate “nexus,” and • help you and others understand nature and limitations of a disability. • To date, no LL has countered us with their own medical expert. • If feasible, include a letter from a medical professional with your RA request.

  10. Making the RA Request • Make it in writing to opposing counsel. • Give a deadline (at least 10 days) for response. • Make clear that failure to respond will be deemed a rejection of the accommodation request. • If LL has questions, it is LL’s burden to “request documentation or open a dialogue.” Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891 (7th Cir. 1996). • Request can be made up to loss of possession. Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. 2005). • BEWARE: • Do not unnecessarily make admissions; • Do not phrase the request as a “settlement offer.” Be clear this is a request for an RA under the FHA.

  11. If RA is denied… • File your affirmative defense and counterclaim based on the violation of the FHA. • Affirmative defense is germane - Marine Park Assocs. v. Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645 (1st Dist. 1971) • Counterclaim spurs debate because seeks damages (and attorney’s fees, where appropriate.) • If your counterclaim is struck as not germane, consider filing an affirmative case in state or federal court under the FHA. • Try a motion to consolidate new (state) case w/ eviction. • Federal court will likely abstain until state eviction action has been concluded.

  12. Supplemental Discovery • Ask LL to identify all actions to accommodate before and after receiving RA request. • Dates and names of each person who received, considered, processed the RA request. • Ask LL to identify all actions to follow-up or seek add’l info. • When did LL become aware of Tenant’s disability? • Is Tenant a threat to the health or safety of other individuals? If so, how? • Would Tenant’s tenancy result in substantial physical damage to the property of others? If so, how?

  13. Common Themes / War Stories • Tenant faces adverse housing consequences for something that stems from a disability, and • The issue has been or can be addressed without imposing an undue burden on landlord. • E.g., For-cause where issue has been addressed through tenant change in behavior, new medications, social work assistance. • War Stories • Pork chop fire • Personal cleanliness • Grease down drain

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