In West Virginia, the Fair Housing Act prohibits discrimination in housing based on nine protected classes; race, color, national origin, religion, sex, familial status, disability, blindness and ancestry. For basic Fair Housing rights see Section One of this manual.
In addition to those basic rights, it is illegal for anyone to:
• Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others to exercise that right
• Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or disability. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
The Fair Housing Act covers most housing. In some circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.
Additional Protection if you have a Disability
If you or someone associated with you:
• Have a physical or mental disability that substantially limits one or more major life activities
• Have a record of such a disability or
• Are regarded as having such a disability
you have the right to reasonable accommodations and reasonable modifications to afford equal use and enjoyment of the dwelling.
Your landlord may not:
• Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the person with a disability to use the housing. 42 U.S.C. §3604(f)(3)(B).
• Refuse to let you make reasonable modifications to your dwelling or common use areas, at your expense, if necessary for the person with a disability to use the housing. The landlord may, however, where it is reasonable to do so, condition permission for a modification on the agreement of the renter to return the inside of the property to its original state. 42 U.S.C. §3604(f)(3)(A).
• Impose conditions or fees on making the accommodation or modification.
There is no legal obligation to making housing available to a person who is a direct threat to the health or safety of others, or whose tenancy would result in substantial physical damage to the property of others. 42 U.S.C. §3604(f)(9). Housing does not have to be made available to any person who is currently using illegal drugs. A direct threat cannot be based on fear, speculation, or stereotypes. It must be an individualized assessment based on reliable objective evidence, and must take into account recent intervening treatment or medication.
There are three requirements for reasonable accommodations and modifications:
1. The request is for a person with a disability as defined by the Fair Housing Act.
2. An identifiable relationship exists between the requested accommodation or modification and the person’s disability.
3. The request is reasonable; it must not
a. Impose an undue financial and administrative burden on the housing provider
b. Alter fundamentally the nature of the provider’s operations
c. Pose a direct threat on health and safety
Privacy Concerns
The housing provider may request information regarding the disability only if it is necessary to verify that the person meet’s the Act’s definition of disability. If the disability is apparent and the request is clearly related to the disability, the housing provider may not request additional information. If the disability is not apparent, the landlord may ask for “proof of disability”. The “proof” may include a statement from a friend, social service agency, or anyone who knows the person stating that they are a person with a disability, and should show the relationship between the person’s disability and the requested modification/ accommodation. The housing provider is not permitted to request medical records or detailed information. All information must be kept confidential.
How to request an accommodation or modification
There is no specific format for making a reasonable accommodation or modification request. A request may be made orally or in writing. Written requests provide documentation to support the tenant should it be denied. A housing provider may have a form to fill out, but this is not required. Requests may be made at anytime during tenancy. The tenant should give the landlord reasonable time to respond. If there is no response for an extended period of time this is considered a denial by the landlord.
This should be an interactive process between the tenant and the landlord. If the financial burden is deemed too great, the landlord should offer an alternative that would be equally effective. However, tenants are not obligated to accept an alternative offered by the landlord if it does not meet their needs and the originally requested accommodation is reasonable.
Reasonable Accommodations
A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.”
See the Joint Statement of the DOJ and HUD at www.hud.gov/offices/fheo/library/huddojstatement.pdf
• Example: A building with a “no pets” policy must allow a visually impaired tenant to keep a guide dog.
• Example: An apartment complex that offers tenants ample, unassigned parking must honor a request from a mobility-impaired tenant for a reserved space to assure access to the apartment.
If there is a cost associated with a reasonable accommodation, the housing provider is responsible for that cost. If the cost poses an undue financial burden to the housing provider, the provider may work with the tenant to find an alternative accommodation.
Reasonable Modifications
A “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas. A request for a reasonable modification may be made at any time during the tenancy. The Act makes it unlawful for a housing provider or homeowners’ association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises.” See the Joint Statement of the DOJ and HUD at www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
• Example: Because of a mobility disability, a tenant wants to install grab bars.
• Example: Because of a hearing disability, a tenant wishes to install a peephole.
• Example: Because of arthritis a tenant has impaired use of her hands and wishes to replace the doorknobs in the apartment with levers.
• Example: Because of a mobility disability, a tenant wants to install a ramp outside the building in a common area.
Note: The tenant must have landlord’s permission before making modifications.
Who pays?
The tenant must pay for modifications unless:
• Any of the structural changes needed by the tenant are ones that should have been included in the unit or public and common use area when constructed. Then the housing provider may be responsible for providing and paying for those requested structural changes. However, if the requested structural changes are not a feature of accessible design that should have already existed in the building pursuant to the design and construction requirements under the Act, then the tenant is responsible for paying for the cost of the structural changes as a reasonable modification.
• The housing receives any federal funds, then modifications would fall under Section 504 of the Rehabilitation Act as a reasonable accommodation, and the landlord would be required to pay. More information on 504 is available at
portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/sect504faq.
Who maintains the new structure?
• If a modification is used exclusively by the tenant, then the tenant is responsible for the upkeep and maintenance of the modification.
• If the modification is made to a common area that the housing provider normally maintains, than the housing provider is responsible for the upkeep and maintenance of the modification.
• If the modification is made to a common area that is not normally maintained by the housing provider, then the housing provider has no responsibility under the Fair Housing Act to maintain the modification.
When tenancy ends
The housing provider may require the tenant to return the property to the original condition when moving out, if modifications were made to the interior of the dwelling and if it reasonable to do so. In general, if the modifications do not affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises, the tenant cannot be required to restore the modifications to their prior state.
The tenant is not responsible for expenses associated with reasonable wear and tear.
For large modifications that need to be removed at the end of tenancy, the landlord may require the tenant establish an escrow fund to cover the costs of removing the modification.
If the next occupant of the dwelling wants to retain the modifications, then the next tenant will be responsible for returning the property to the original condition if it is reasonable to do so, and requested by the landlord.
Requirements for New Buildings
The Fair Housing Act has Design & Construction requirements for buildings ready for first occupancy after March 13, 1991 with four or more units:
• Accessible entrance on an accessible route
• Public and common areas must be accessible to persons with disabilities
• Doors and hallways must be wide enough for wheelchairs
• Accessible route into and through the unit
• Accessible light switches, electrical outlets, thermostats and other environmental controls
• Reinforced bathroom walls to allow later installation of grab bars
• Kitchens and bathrooms that can be used by people in wheelchairs.
If a building with four or more units has no elevator and was ready for first occupancy after March 13, 1991, these standards apply to ground floor units only. If the building has an elevator, these standards apply to every unit in the building.
These requirements for new buildings do not replace any more stringent standards in state or local law. For more information on design and construction requirements see www.fairhousingfirst.org.
Housing Opportunities for Families
Unless a building or community qualifies as housing for older persons, it may not discriminate based on familial status. That is, it may not discriminate against families in which one or more children under 18 live with:
• A parent
• A person who has legal custody of the child or children or
• The designee of the parent or legal custodian, with the parent or custodian’s written permission.
Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.
Exemption: Housing for older persons is exempt from the prohibition against familial status discrimination if:
• The HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a federal, state or local government program or
• It is occupied solely by persons who are 62 or older or
• It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.
A transition period permits residents on or before September 13, 1988, to continue living in the housing regardless of their age, without interfering with the exemption.
The purpose of these laws is to prevent discrimination on the basis of a person’s membership in a protected class. Nothing in the law forbids landlords from setting fair screening guidelines and applying them equally to all applicants.
Complaints of Fair Housing Act violations may be filed with the U.S. Department of Housing and Urban Development (HUD).
Office of Fair Housing and Equal Opportunity
U.S. Department of Housing and Urban Development
The Wanamaker Building
100 Penn Square East, 12th Floor
Philadelphia, PA 19107-3380
(215) 656-0663, ext. 3260
888-799-2085
TTY (215) 656-3450
portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination
The West Virginia Human Rights Commission
1321 Plaza East Room 108A
Charleston, WV 25301-1400
(304) 558-2616
888-676-5546
West Virginia Fair Housing Action Network
601-3 East Brockway Ave Suite A + B
Morgantown, WV 26501
800-834-6408
304-296-6091
www.wvfairhousing.org
Visit the HUD website for more information on Fair Housing and Equal Opportunity:
portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp