Exploring the material impacts of ADA and FHA accommodations – Karsaz Law gives a summary of the guidelines you should know to protect your asset.

When raising issues of accommodations and structural modifications at an apartment community, Residents overwhelmingly tend to refer to the ADA in lieu of fair housing. This is partly due to their lack of knowledge in the area, but also based on their assumption that Management will be responsible to cover any associated costs.

What are the key differences between the ADA and fair housing and how will these differences materially impact you as Management?

The ADA refers to the Americans with Disabilities Act. The ADA provides persons with disabilities full and equal enjoyment of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.  Under Title III of the ADA, certain public and common use spaces of an apartment community [e.g. rental offices and prospective resident parking] are considered public accommodations as they are open to the public. Apartment communities must therefore comply with the ADA in such areas.  However, in regard to areas that are not available to the public, the general rule is that the ADA does not apply

This is where the fair housing analysis steps in.  The Fair Housing Act (or “FHA”) prohibits discrimination in the sale, rental, and financing of housing based on the individual’s disability, race, color, religion, sex, national origin or familial status. The intent of the FHA is to ensure equal access to housing regardless of protected class. Generally speaking, most issues occurring at the apartment community fall within the purview of the FHA and not the ADA by reason that a typical multi-family property contains very few places open to the general public.

Practically, if residents request an accommodation or modification based on disability, the ADA/FHA designation will have no impact on the approval process.  Management is required to make any reasonable and necessary accommodations or modifications to afford a person with a disability the equal opportunity to use and enjoy a dwelling as long as they are feasible and there is no necessary business reason to deny the request.  The only material impact of the designation is concerning cost.  The FHA provides that while Management must permit the modification if reasonable under the circumstances, the tenant is responsible for paying the cost.  Under the ADA, if the area is open to the general public, Management should be responsible for the cost. 

If your community receives federal funds for the construction and/or management of the community (1. public housing assistance, 2. project-based housing assistance programs, 3. housing assistance for persons with disabilities, 4. housing assistance for the elderly, and 5. housing assistance programs for the homeless), please contact an attorney to perform a 504 analysis (Section 504 of the Americans with Disabilities Act).

If you would like to learn more about accommodation requests, reach out to us at info@karsaz-law.com.

Nevada’s Multifamily Approach to Marijuana:

A guide for marijuana related issues on multifamily properties

       There are many issues surrounding the legality of marijuana use and consumption within the multifamily industry. This article aims to clear any confusion.

       Up until 2001, it was clear that marijuana was an illegal drug and could be treated as such within the industry. This changed when Nevada decriminalized medical marijuana through state legislature. This change of law allowed the production, retail sale, and legal consumption of medical marijuana for medical patients with a valid physician recommendation. Though medical marijuana has been decriminalized for over 17 years, everything changed with the decriminalization of recreational marijuana, effective January 1, 2017. Along with the decriminalization of recreational use came a wave of multi-family issues.

       The result of this wave is an increase in residents use of marijuana (specifically in the form of smoking) within their apartment homes and its impact on neighboring residents. Most of us in the industry have encountered this type of neighbor dispute and situations in which we need to decide what action, if any, we are permitted to take in response to the dispute.

       Let’s get straight to the facts: There is no absolute right to smoke marijuana regardless of the decriminalization of the substance. If residents with disabilities who possess medical marijuana cards request the right to smoke marijuana in their apartment, consult your legal counsel to determine the appropriate response for handling this type of reasonable accommodation request. If a resident refuses to stop smoking marijuana on property because of state-wide decriminalization, you should seek legal counsel to determine the correct course of action. In an effort to avoid these complicated issues, Landlords may consider the option of going smoke-free on their properties. Contact an attorney for further clarification for the implementation of a smoke-free policy.