5 Tips for Handling Transfer Requests from Households with Disabilities
From time to time, you must transfer a household to another unit to comply with fair housing law. The Fair Housing Act, Section 504, and the ADA prohibit discrimination in housing because of disability. This includes refusing to provide reasonable accommodations for persons with disabilities when necessary. A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations. A unit change, therefore, can be a reasonable accommodation.
For example, in a recent case, the Housing Authority of the City of Dallas, Texas (DHA) got in trouble because it was found to have discriminated against a tenant by denying her unit transfer request. The tenant asked for a reasonable accommodation to move to a ground-floor unit after a car accident severely limited her ability to climb the stairs to her second-floor apartment. DHA denied her request, and the tenant was forced to crawl up and down the stairs to access or leave her home, causing her physical pain, injury, and humiliation. HUD also found that DHA retaliated against the tenant after she requested a ground-floor unit by refusing to accept her rental payments and then evicting her.
In a Voluntary Compliance Agreement-Conciliation Agreement with HUD, DHA agreed to pay $500,000 to the former tenant. In addition to the payment, DHA agreed to clear any debts DHA had alleged she owed and pay a civil penalty to HUD. The housing authority also agreed to overhaul its reasonable accommodation policies and pre-eviction grievance hearing procedures to ensure compliance with the civil rights laws.
To help you navigate transfer requests from households with disabilities, we’ll give you five tips to help you comply with fair housing law.
Tip #1: Set Policies, Procedures for Handling Accommodation Requests
The HUD Handbook clearly states that owners are obligated to transfer tenants to different units as a reasonable accommodation to a household member’s disability [HUD Handbook 4350.3, par. 7-15(E)]. In the case of a unit transfer, both the change in rent and change in the assistance payment are effective on the day the tenant actually occupies the new unit. With regard to transfer requests to accommodate a person with a disability, HUD says owners must develop additional unit transfer policies to address tenant transfer requests beyond those needed for a change in family size [HUD Handbook 4350.3, par. 7-15(D)].
Your site should adopt formal policies and procedures on disability-related transfer requests—or any other requests for an exception to your rules based on disability. Having formal procedures will let everyone know what to expect from the process to prevent any misunderstandings. It also shows that your site takes accommodation requests seriously, and helps ensure that requests don’t fall through the cracks—a good way to ward off fair housing trouble, since inaction on an accommodation request is often what triggers a discrimination complaint.
The policy may detail your site's procedures for processing requests for reasonable accommodations in any of its rules, policies, practices, or services, when such accommodations may be necessary to afford the individual with disabilities an equal opportunity to use and enjoy the dwelling. It also may describe the standards for evaluating the request and identify who will make the decision on the request, such as the site's fair housing coordinator, manager, or owner.
Having formal procedures will also help a housing provider in the event of a later dispute by providing records to show that the accommodation request received proper consideration. You may need this proof if you bring a special claim for vacancy loss for the unit the household is vacating. Or you may need these records as proof if a household ever accuses you of refusing to grant a unit transfer for a discriminatory reason. If a case like that went to court, you would want your household files to show that you transferred households only in accordance with your site’s unit transfer policy.
Tip #2: Train Staff How to Handle Transfer Requests as Reasonable Accommodations
Train your staff to follow your policies and procedures on reasonable accommodations anytime they receive a transfer request that may be related to a disability. The disability-related need for a transfer request may be obvious in some cases, such as when a resident with mobility impairments requests a transfer to a ground-level unit. But it may be difficult to determine the need for the transfer for residents whose disability is not obvious, such as chemical sensitivity or an emotional impairment.
In addition, make sure your staff knows what to do if a resident can't or won't follow your policies or procedures on reasonable accommodations. For example, your policy may include asking residents seeking a transfer as a reasonable accommodation to fill out a standardized form to start the process. The FHA doesn’t require the request to be made in any particular manner or at any particular time, according to HUD.
The request may be made orally or in writing, and sites must consider reasonable accommodation requests even if the resident doesn’t use your site's preferred forms or procedures for making requests. That means you must be sure your staff knows what to do if faced with a resident who wants an exception to a rule as a reasonable accommodation without following your established policies. For example, if a household resident refuses to fill out your standardized form, you could train staff members to document the request by filling out the form themselves.
Also, without training, a staff member may fail to recognize a request for a reasonable accommodation, leading to inaction—and ultimately, a fair housing complaint. Although the FHA doesn’t require a site to provide a reasonable accommodation unless the applicant or resident asks for one, the law doesn’t require a resident or an applicant to use the words “reasonable accommodation” when making a request for one. The law considers an applicant or a resident to be making a request for a reasonable accommodation anytime she “makes it clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability,” according to HUD.
Tip #3: Assess Whether Transfer Request Is Related to Disability
You’re not required to make an exception to your site's rules, policies, or services unless it's necessary for a person with a disability to have an equal opportunity to use and enjoy the dwelling. The law considers a requested accommodation to be necessary when there is some identifiable relationship between the requested accommodation and the individual's disability, according to HUD guidelines.
Suppose you receive a transfer request from a household asserting that they need a quiet unit to protect their mental health. In the request, it was never made clear precisely how the transfer request was linked to or made necessary by their disabilities. If the disability isn’t obvious, then you may request reliable disability-related information to verify that the person meets the FHA’s definition of disability. And unless the link between the disability and the requested accommodation is readily apparent, you may seek information necessary to evaluate whether the requested accommodation is needed because of a disability. Any disability-related information must be kept confidential, unless disclosure is required by law.
Tip #4: Don't Impose Special Conditions on Accommodation Requests
The FHA bars communities from imposing any special conditions or extra fees as a prerequisite to receiving a reasonable accommodation. If a current resident requests a transfer to another unit to accommodate a disability, you may not create any obstacles or discourage him from pursuing the request. For example, you could trigger a fair housing complaint if you insist that a resident wait until the end of the lease term to make a move, or require the resident to pay additional fees as a condition to allowing the transfer.
In fact, if a tenant is transferred as a reasonable accommodation to a household member’s disability, then the owner must pay the costs associated with the transfer, unless doing so would be an undue financial and administrative burden [HUD Handbook 4350.3, par. 7-16(B)(2)].
Tip #5: Conduct Unit Inspections, Process Documents, and Account for Security Deposits
When transferring households to another unit, be sure to conduct the move-out and move-in unit inspections for transfers. When conducting a move-out inspection of the unit from which the household is moving, don’t forget to tell the household when you’ll conduct the move-out inspection and let the household accompany you if they want to [HUD Handbook 4350.3, par. 6-29(A)(2)].
Similarly, be sure to conduct a move-in inspection of the unit to which the household is moving. Do this jointly with the household head before you and the household sign the lease for the new unit [HUD Handbook 4350.3, par. 6-29(C)(1)].
Along with the inspections, make sure you process all the necessary paperwork when transferring households to another unit. The household must sign a new lease and any applicable lease addendums for the new unit [HUD Handbook 4350.3, par. 6-5(B)(3)]. You aren’t allowed to just make handwritten modifications to the lease covering the move-out unit. You and the household must sign the 50059 that is generated when you record the unit transfer with your software.
Regarding the security deposit, in a unit transfer, HUD says you may charge a new and different security deposit or transfer the security deposit from the move-out unit to the move-in unit [Handbook 4350.3, par. 6-16(A)]. It’s up to you. If you collected the appropriate security deposit when the household moved to the site, you won’t jeopardize your right to make special claims for unpaid rent or damages by not asking for a new deposit. But collecting a new security deposit may give you greater protection if the household damages the unit. You’ll need to weigh this benefit against the administrative cost of requiring new security deposits for transfers.
If you decide to charge a new security deposit for a unit transfer, you must close out the old security deposit on your books, deduct any unpaid rent or other charges (such as charges for damage), and refund any remainder. Then you can collect the new deposit amount appropriate to the unit [Handbook 4350.3, par. 6-16(B)]. Keep proof of both the new and old security deposits, such as accounting records and security deposit disposition forms or receipts. Depending on what your contract administrator or local HUD office requires, you may need documentation of both security deposits for a damage claim.
If the old security deposit transferred, write the amount of the prior security deposit amount on the new lease. You can’t increase or lower that amount. Depending on how your site accounts for security deposits in your books (for example, if you organize security deposits by unit numbers) you might have to take some steps to show what you did. You can keep proof of the transfer of the security deposit by filling out a security deposit disposition form that shows you transferred the security deposit from one unit to another. Or you could write a short memo to the file.