NIMBY (“not in my back yard”) litigation is common under the Fair Housing Act. An organization that serves recovering addicts or individuals with mental disabilities will try to locate in a neighborhood where deed restrictions or zoning prohibits group homes and find its efforts blocked by the city or homeowners association because the neighbors don’t want “undesirable” individuals living in the area. Commercial landlords subject to the Americans with Disabilities Act can face the same kind of pressure not to rent to tenants who serve the disabled. A landlord who succumbs to pressure from other tenants, or makes a leasing decision based on assumptions or stereotypes may find itself on the losing end of a lawsuit or a DOJ investigation.
Special Educ. Services v. Rreef Performance Partnership-I,L.P, 1995 WL 745964 (N.D. Ill. 1995) perfectly illustrates a typical situation. The plaintiff (“SES”) operated a school and vocational education facility for developmentally disabled children. At the expiration of its lease the defendant landlord refused to renew. It claimed to have legitimate business reasons, but they were all tied in one way or another to the disabilities of the children or their needs. It complained, for example, that the busses transporting the children blocked parking places, that the children generated excessive complaints about noise or playing games in the parking lot, and, perhaps most telling, that the location was not “an appropriate place” for for children. What the plaintiff did not do was make any effort to accommodate the cause of the problems, or even to address them with SES until it refused to renew the lease. The district court had little difficulty finding that SES would probably prevail in its lawsuit and granted an injunction against eviction.
The DOJ’s involvement in this kind of commercial leasing can be found in its handling of a case by Sinergia, a non-profit that operated an facility to help the mentally disabled. When a landlord refused to rent to it because other tenants complained the DOJ stepped in. The result was a consent decree that included a $75,000 payment to Sinergia and a court order compelling the landlord to comply with the ADA.
What can a landlord do when faced with the tug-of-war between concerns about other tenants and customers and the requirements of the ADA? There are four key things to remember:
- First, the landlord must understand that tenants who serve those with disabilities must be given special treatment. In the language of the statute, they must be given reasonable accommodations. For an ordinary tenant, violations of lease requirments or disruptive behavior by the tenant’s customers might well justify a refusal to renew or, if serious enough, a reason to evict. If those same concerns are the related to disabilities of the tenant’s customers the landlord cannot rely on its right to refuse to renew. Instead the landlord must engage in a conversation with the tenant in which the landlord seeks solutions; otherwise non-renewal or eviction are likely to be seen as discrimination.
- Second, the landlord must document its efforts to accommodate tenant problems related to disability. The landlord in the SES case had legitimate concerns about SES as a tenant, but it did nothing to express those concerns until it decided not to renew the lease. This kind of passive-aggressive behavior will not be accepted for tenants protected by the ADA. The landlord must document its efforts to deal with tenant problems so that it is clear when the inevitable lawsuit is filed that the landlord’s concerns were not merely a pretext for disability discrimination.
- Third, when considering a new lease the landlord needs to carefully consider whether its concerns are based on stereotypes about those with disabilities. A landlord may believe that recovering addicts are more likely engage in criminal conduct than ordinary customers, but if it refuses to lease to an addiction recovery organization it must be prepared to prove in court that this is a fact. It cannot rely on “common knowledge” about the matter.
- Finally, the landlord considering a new tenant must also consider what reasonable solutions it might find to any real problems it may face. If the tenant uses busses, as was the case in SES, the landlord must make an effort to deal constructively with the parking problem rather than merely refusing to sign a new lease or renew an old one. Again, dialogue with the prospective tenant is critical, and must be focused on finding solutions rather than using problems as an excuse not to sign a lease.
At the end of the day the ADA’s requirements for dealing with tenants who serve the disabled are not much different than the best practices in commercial leasing; that is, work with tenants to solve problems. The difference is that refusing to engage in constructive dialogue with a tenant protected by the ADA can result in a lawsuit, an investigation by the Department of Justice, and possibly a steep fine as well as money spent on lawyers. For ordinary tenants being reasonable is optional; for ADA tenants it is the law.