Indiana Law Review


Indiana Law Review
Volume 36 2003 Number 3

NOTES

The FHAA's Reasonable Accommodation &
Direct Threat Provisions as Applied to Disabled
Individuals Who Become Disruptive, Abusive,
OR Destructive in Their Housing Environment

Jennifer L. Dolak*

Introduction

The challenge to stop discrimination and integrate America's disabled
individuals into mainstream housing is an ongoing quest.' Congress first

attempted to protect disabled people with the Rehabilitation Act of 1973.^ In

1988, the Fair Housing Act (FHA)^ was amended by the Fair Housing
Amendments Act (FHAA) to include disabled individuals in the group ofpersons
protected from discrimination in the sale or rental of housing/ The Americans

J.D. Candidate, 2003, Indiana University School of Law—Indianapolis; B.S., 1995,
Indiana University, Bloomington, Indiana. I would like to thank Professor Florence Wagman
Roisman for her guidance during the writing of this Note.

1. The National Council on Disability (NCD) issued a report in 2001 focusing on

administrative enforcement of Section 504 of the Rehabilitation Act and the Fair Housing Act

(FHA) by the Department of Housing and Urban Development (HUD). The report indicates that

HUD has failed to adequately enforce civil rights laws and states, "the promises ofthe fair housing
laws have been empty for many Americans, with and without disabilities." Nat'l COUNCIL ON

Disability, Reconstructing Fair Housing 3 (2001), available at
http.V/www.ncd.gov/newsroom/ publications/0 lpublications.html. Further, the report states:

Without effective and fair enforcement of civil rights laws, people who are injured by

housing discrimination lack recourse to remedies and rights that Congress passed in an

express effort to achieve a country free from invidious discrimination. And without

effective and fair enforcement ofcivil rights laws tied to increased education about those

laws, people cannot know the ways in which discrimination may occur so they can avoid

discriminating, and those that perpetrate discrimination will not be held accountable for

their unlawful actions.

Id. at 3-4.

2. Section 504 ofthe Rehabilitation Act prohibits discrimination against otherwise qualified

individuals with disabilities in any program receiving federal financial assistance. Rehabilitation

Act of 1973 § 504, 29 U.S.C. § 794(a) (2000).

3. The Fair Housing Act is the short title for Title VIII ofthe Civil Rights Act of 1968.

4. Fair Housing Amendments Act of 1988, § 6, 42 U.S.C. § 3604(f) (1994 & Supp. V



760 INDIANA LAW REVIEW [Vol. 36:759

with Disabilities Act (ADA) was enacted in 1990 and further prohibited
discrimination on the basis of disability in such areas as employment and public
services.^

Under the FHA, a disabled individual can bring a claim against a party under
any of three theories: intentional discrimination, disparate impact, or failure to

make reasonable accommodation as required by 42 U.S.C. § 3604(f).^ This Note
will focus on reasonable accommodation claims by individuals who have
disabilities that cause disruptive, abusive, or destructive behavior in their housing

environment.

Although many years have passed since the enactment ofthe FHAA in 1 988,
there has been and continues to be much litigation regarding reasonable
accommodations. This litigation has resulted in the general acceptance ofcertain

kinds ofreasonable accommodations, such as the waiver ofzoning and other land

use restrictions to allow for group homes in areas zoned for single-family use
only,^ the allowance of assistance animals for disabled individuals in buildings

with no-pets policies,^ and the reservation ofparking spaces close to the building

for use by disabled residents.^ As these areas ofreasonable accommodation law
have become generally settled, other problematic areas have emerged and

1999)).

5. Americans with Disabilities Act, 42 U.S.C § 12101 (1994 & Supp. V 1999).
6. See Robert G. Schwemm, Housing Discrimination §§ 10. 1 , 1 1 .5(4) (1990 & Supp.

1996).

7. The House Judiciary Committee made its intentions clear regarding the effect of the

FHAA on discriminatory zoning practices when it stated, "The Committee intends that the
prohibition against discrimination against those with handicaps apply to zoning decisions and

practices." H.R. REP. No. 100-71 1, at 24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185.

Even though the Committee plainly set out its intentions, the residents of many communities

continue to attempt to circumvent the law by using indirect means to keep group homes out oftheir

neighborhoods. E.g., Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.
1996) (municipality required to increase the number of unrelated persons allowed to reside in a

dwelling in a neighborhood zoned for single-family use only as an accommodation for a group

home for the elderly disabled when such accommodation would not result in the fundamental

alteration of the single-family neighborhood). The intention of the House may be clear, but

litigation is often required before a group home can be established in a community. See also

Schwemm, supra note 6, § 1 1.5(3)(c).

8. HUD regulations give as an illustration of action that violates the FHAA's reasonable
accommodation provision the following example:

It is a violation of § 100.204 for the owner or manager of [an] apartment complex to

refuse to permit [a blind] applicant to live in [an] apartment with a seeing eye dog

because, without the seeing eye dog, the blind person will not have an equal opportunity

to use and enjoy a dwelHng.

24C.F.R. § 100.204(2001).

9. E.g., Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891 (7th Cir. 1996); Shapiro v.
Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995).



2003] FHAA'S REASONABLE ACCOMMODATION 761

continue to exist without any clear guidance.
^°

One area of law that remains unsettled is what, if any, reasonable
accommodation must be made when disabled residents are disruptive, abusive,
or destructive in their housing environment. This type of case poses a special

problem because, unlike individuals who require a reasonable accommodation
for a physical disability, some ofthe individuals who become abusive, disruptive,
or destructive are a direct threat to the health and safety of others. The FHAA
includes a direct threat exception to the reasonable accommodation provision and

does not require that an accommodation be made if the resident poses a direct
threat to the health or safety ofothers, and the accommodation will not eliminate

the nature of the threat. '' Thus, in this type of case, it is necessary to consider

both the reasonable accommodation provision and direct threat exception

included in the FHAA.
It is not clear how many people become disruptive, abusive, or destructive

in their housing environment. However, this is a significant problem for each

person who becomes involved in this difficult situation, including the disabled
individual, the landlord or housing association (which will be collectively

referred to as property manager for purposes of this Note), and other residents.

As cases discussed later in this Note will demonstrate, a property manager may
lose other residents as a result ofthe conduct of one disabled resident.'^ This is

certainly an incentive for property managers to try to remedy the problem as

quickly as possible, but the question becomes: how do they fix the problem?
In almost all of the cases involving disruptive, abusive, or destructive

behavior by a resident and reasonable accommodation claims under the FHAA,
the behavior was a direct result ofsome form ofmental disability.'^ The number
of cases involving disruptive, abusive, or destructive behavior by residents is

small in relation to the number of people that suffer from some form of
significant mental disorder every year.''* However, as the demographics of

society change, and a larger percentage of the population becomes older, the

potential for this type of situation is greater as larger numbers of people suffer

10. Cf. Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 300 (2d Cir. 1998)

(landlord's refusal to accept disabled tenants eligible for Section 8 housing did not violate the

FHA's reasonable accommodation provision because such accommodation would have required

a fundamental alteration of rental policies and the imposition of a substantial burden).

11. 42 U.S.C.§ 3604(f)(9) (1994 &Supp.V 1999).
12. See Roe v. Sugar River Mills Assocs., 820 F. Supp. 636 (D.N.H. 1993).

13. See discussion infra Part II.

14. About nine percent of adults in the United States are affected by significant disorders of

mental processes every year. Some disorders may last for only a brief period of time. Disorders

are evidenced by such problems as disordered thinking, perceptual difficulties, delusions,

hallucinations, mood disturbances, and impairments in social and vocational functioning and in

self-care. John Parry, Mental Disability Law: A Primer 3 (5th ed. 1995). "Severe mental
illnesses, which include schizophrenia, bipolar disorder, £ind severe depression, affect almost three

percent of the adult population per year." Id.



762 INDIANA LAW REVIEW [Vol. 36:759

from age related mental illnesses such as Alzheimer's disease.'^

Part I of this Note surveys the development of the law protecting disabled

people and the relevant legislative history. This section also focuses on the

standards that developed from case law interpreting Section 504 of the

Rehabilitation Act. The analysis in Part II addresses the major questions raised
in cases involving residents who become disruptive, abusive, or destructive in
their housing environment. Part II.A addresses the relationship between the

reasonable accommodation provision and the direct threat exception and discuss
specifically the rights and obligations of property managers and disruptive,

abusive, or destructive residents who claim reasonable accommodation
protection. Part II.B discusses who should bear the burden of proposing and
implementing the accommodation. Part II.C addresses what conduct by a
resident amounts to a direct threat, and Part II.D discusses the standards to be

used in determining whether an accommodation is appropriate as well as some
accommodations that have been used in the past.

I. Development of the Law, Legislative History, and Standards
Referenced by the Legislative History

A. Development ofthe Law and Legislative History

The Rehabilitation Act of 1973 was the first attempt by Congress to protect
the rights of disabled individuals. The Act prohibits discrimination against
otherwise qualified disabled individuals in programs receiving federal financial

assistance.'^ The relevant portion of the Act states, "No otherwise qualified
individual with a disability in the United States . . . shall, solely by reason ofher

or his disability, be excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving Federal

financial assistance
"'^ Although the scope ofthe Act's protection is limited

1 5. Alzheimer's disease is the most common cause of dementias. This disease is "thought

to affect one ofevery twenty-five persons between the ages ofsixty-five and seventy-four years, and

nearly one of every two persons eighty-five years old or older." Id. at 4. Persons with dementias

may have any number ofsymptoms including "behavioral problems such as wandering and pacing,

emotional outbursts, disruptiveness, and aggression." Id. at 5. Progressive degenerative diseases

like Parkinson's disease, Huntington's disease, Pick's disease, cardiovascular diseases, brain

infections, metabolic disorders, and brain tumors may also cause dementias. Id.

It is estimated that four million people currently suffer from Alzheimer's disease and that the

estimated number of approximately 360,000 new cases each year will continue to increase as the

population ages. National Institute on Aging & National Institutes of Health, 2000
Progress Report on Alzheimer's Disease: Taking the Next Steps 2-3 (2000), available at

http://www.alzheimers.org/pubs/progOO.htm (citing R. Brookmeyer et al.. Projections of

Alzheimer 's Disease in the UnitedStates and the Public Health Impact ofDelaying Disease Onset,

88 Am. J. Pub. Health 1337, 1337-42 (1998)).

16. 29 U.S.C. § 794(a) (2000).

17. Id.



2003] FHAA'S REASONABLE ACCOMMODATION 763

because it applies only to federal programs, it does have application to housing

programs that receive federal financial assistance.

Fifteen years after the enactment ofthe Rehabilitation Act came the passage
of the FHAA, which added handicapped individuals to the class of people
protected under the FHAJ^ The FHAA provides much broader protection than
the Rehabilitation Act for disabled individuals against discrimination in the sale

or rental of housing because it is not limited to programs receiving federal

financial assistance. The House Judiciary Committee stated that the purpose of
the FHAA, similar to the purpose of Section 504 of Rehabilitation Act of 1973,
was to express the:

[N]ational commitment to end the unnecessary exclusion ofpersons with
handicaps from the American mainstream. It repudiates the use of
stereotypes and ignorance, and mandates that persons with handicaps be

considered as individuals. Generalized perceptions about disabilities and

unfounded speculations about threats to safety are specifically rejected

as grounds to justify exclusion.'^

The House Judiciary Committee indicated that the standards developed by
case law under Section 504 of the Rehabilitation Act should apply under the

FHA.^° These standards will be discussed further in Part LB of this Note.
The Fair Housing Amendments Act of 1988 adds the following provision to

the FHA, making it unlawful:

(f)(2) To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services

or facilities in connection with such dwelling, because of a handicap

of—
(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is

so sold, rented, or made available; or
(C) any person associated with that person.^'

Further, the FHAA provides that discrimination includes "a refusal to make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use
and enjoy a dwelling."^^

In addition to the non-discriminatory and reasonable accommodation
provisions included in the FHAA, Congress included a "direct threat" exception
that is at the center of the discussion in this Note. The direct threat exception
states, "Nothing in this subsection requires that a dwelling be made available to

18. Fair Housing Amendments Act of 1988, § 6, 42 U.S.C. § 3604(0 (1994 & Supp. V
1999)).

19. H.R. REP. No. 100-711, at 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179.

20. Id. at 25, reprinted in 1988 U.S.C.C.A.N. at 2186.

21. Fair Housing Amendments Act of 1988 § 6, 42 U.S.C. § 3604(f)(2).

22. /fi^. § 3604(f)(3)(B).



764 INDIANA LAW REVIEW [Vol. 36:759

an individual whose tenancy would constitute a direct threat to the health or
safety ofother individuals or whose tenancy would result in substantial physical
damage to the property of others."^^ Although the Judiciary Committee stated
that it did not foresee that a disabled tenant would pose a threat to the health and
safety of others simply as a function of being handicapped, the Committee said
Congress included the "direct threat" exception to the non-discrimination

provisions of the Act in order to allay the fears of "those who believe that the
non-discrimination provisions ofthis Act could force landlords ... to rent ... to

individuals whose tenancies could pose such a risk."^"^

B. Standards Referenced by Legislative History

The report of the House Judiciary Committee indicates that the line of
decisions involving Section 504 of the Rehabilitation Act should be applied to

claims brought under the FHAA.^^ The federal circuit and district courts have
also recognized that this line of decisions defining the concept of a reasonable

accommodation under Section 504 is applicable under the similar provisions of
the FHAA.^^ This line ofcases includes two Supreme Court cases. Southeastern
Community College v. Davis^^ and School Board ofNassau County v. Arline}^
In applying these cases to the FHAA the House Report established that:

A discriminatory rule, policy, practice or service is not defensible simply
because that is the manner in which such rule or practice has

traditionally been constituted. This section would require that changes

be made to such traditional rules or practices if necessary to permit a
person with handicaps an equal opportunity to use and enjoy a

dwelling.^^

In addition, the Committee said that Congress drew upon these decisions when
it decided to include the direct threat exception. The Committee stated that if a
resident poses a direct threat to the health and safety of others in a housing

environment, a reasonable accommodation is not required unless it will eliminate

the threat.^^

23. /^. § 3604(f)(9).

24. H.R. Rep. No. 100-71 1 at 26, reprinted in 1988 U.S.C.C.A.N. at 2187.

25. Id. at 25, 29, reprinted in 1988 U.S.C.C.A.N. at 2186, 2190.

26. See, e.g.. Smith & Lee Assocs., Inc. v. City ofTaylor, 102F.3d781, 795(6thCir. 1996)
("As several courts have noted, the House Report's numerous references to Section 504 indicate

that Congress intended courts to apply the line of decisions interpreting 'reasonable

accommodations' in Section 504 cases when applying the FHAA."). See also Oxford House, Inc.

V. Township of Cherry Hill, 799 F. Supp. 450 (D.N.J. 1992).

27. Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979).

28. Sch. Bd. of Nassau County v. Arline, 480 U.S. 273 (1987).

29. H.R. REP. No. \00-l\\,at25, reprinted in 1988 U.S.C.C.A.N. at 2186.

30. Id. ai29, reprinted in 1988 U.S.C.C.A.N. at 2190. The purpose of including the direct

threat exception in the FHAA was to codify the "otherwise qualified" standard as developed by case



2003] FHAA'S REASONABLE ACCOMMODATION 765

The Supreme Court addressed Section 504 ofthe Rehabilitation Act for the
first time in Davis.^^ In Davis, an individual suffering from a serious hearing

disability brought a claim against Southeastern Community College, an
institution receiving federal funds, after she was denied admission to a nursing

program because she could not meet certain requirements of that program.

According to an audiologist's report, Davis could not understand speech except

through lip reading. The college rejected Davis because her "hearing disability

made it unsafe for her to practice as a nurse."^^ In addition, the college adopted
the conclusion that "it would be impossible for [Davis] to participate safely in the

normal clinical training program, and those modifications that would be

necessary to enable safe participation would prevent her from realizing the

benefits of the program.""

The specific issue addressed by the Court was whether the Act, which
"prohibits discrimination against an 'otherwise qualified handicapped individual'

in federally funded programs 'solely by reason of his handicap,' forbids

professional schools from imposing physical qual ifications for admission to their

clinical training programs."^"* The Court determined that the language ofthe Act
did not require educational institutions to "disregard the disabilities of

handicapped individuals or to make substantial modifications in their programs
to allow disabled persons to participate."^^ Rather, the Court concluded that the

language of the Act meant that "mere possession of a handicap is not a

permissible ground for assuming an inability to function in a particular

context."^^ The Court found that "[a]n otherwise qualified person is one who is
able to meet all of a program's requirements in spite of his handicap."^^ Davis

was not determined to be an otherwise qualified person entitled to protection
under Section 504.^^

In reaching its conclusion, the Court used language setting forth the standard

that a reasonable accommodation is one that does not require a "fundamental

alteration" of the nature of a program or imposition of "undue financial and

administrative burdens."^^

law in an employment context under Section 504. Id. As discussed in Davis, handicapped

individuals are "otherwise qualified" if, with reasonable accommodation, they can satisfy all the

requirements for a position or services. Davis, 442 U.S. at 406. This definition is subject to the

exception created in Arline where the Court held that "[a] person who poses a significant risk . .

.

to others . . . will not be otherwise qualified . . . if reasonable accommodation will not eliminate that

risk." Arline, 480 U.S. at 288 n.l6.

31. Davw,442U.S. at405.

32. /flf. at401.

33. /^. at 401-02.

34. /^. at 400.

35. Mat 405.
36. Id.

37. /^. at 406.

38. /^. at 414.

39. The Court stated, "Whatever benefits [Davis] might realize from such a [modified] course



766 INDIANA LAW REVIEW [Vol. 36:759

Arline is a case involving employment discrimination under Section 504 of
the Rehabilitation Act. Gene Arline was discharged from her job, teaching
elementary school, after suffering a relapse of tuberculosis. The school board
stated its reason for terminating Arline's employment as the "continued
reoccurence [sic] of tuberculosis.""*^ The Court concluded that Arline was
considered handicapped for purposes of Section 504 and then addressed whether

Arline was "otherwise qualified" to teach elementary school."** Due to
insufficient findings of fact by the district court, no determination was made
regarding whether Arline was otherwise qualified to teach elementary school.
However, the Supreme Court did set forth a standard: "[a] person who poses a
significant risk ofcommunicating an infectious disease to others in the workplace

will not be otherwise qualified for his or her job if reasonable accommodation
will not eliminate that risk.""*^ Additionally, the Court stated that employers do
have "an affirmative obligation to make a reasonable accommodation for a
handicapped employee.""*^

The Arline standard was incorporated into the direct threat exception under
the FHAA."*"* The House Report stated that "a dwelling need not be made
available to an individual whose tenancy can be shown to constitute a direct
threat and a significant risk ofharm to the health or safety ofothers.""*^ However,

"[i]fa reasonable accommodation could eliminate the risk," the accommodation

must be made."*^

The Committee said that a direct threat could only be shown through
evidence of overt acts. Specifically, the House Report stated:

Any claim that an individual's tenancy poses a direct threat and a
substantial risk ofharm must be established on the basis of a history of
overt acts or current conduct. Generalized assumption, subjective fears,

and speculation are insufficient to prove the requisite direct threat to

others. In the case of a person with a mental illness, for example, there

must be objective evidence from the person's prior behavior that the

of study, she would not receive even a rough equivalent ofthe training a nursing program normally

gives. Such ^fundamental alteration in the nature ofa program is far more than the 'modification'

the regulation requires." Id. at 410 (emphasis added). Additionally, the Court writes,

"[Technological] advances also may enable attainment of these goals without imposing undue

financial and administrative burdens upon a State." Id. at 412 (emphasis added). See also Sch.

Bd. of Nassau County v. Arline, 480 U.S. 273, 288 n.l7 (1987).

40. Arline, 480 U.S. at 276.

41. Mat 281, 287.
42. /t/. at 287 n. 16.

43. M at 289 n. 19.
44. The Committee stated, "While Arline dealt with employment in the context of Section

504, the Committee intends that same standard to apply in the context of housing under [the

FHAA]." H.R.REP.N0. 100-711,3X29 i\9^S), reprinted in 1988 U.S.C.C.A.N. 2173, 2190.

45. Id

46. Id.



2003] FHAA'S REASONABLE ACCOMMODATION 767

person has committed overt acts which caused harm or which directly
threatened harm/^

Thus, a property manager may determine that a person is a direct threat based
only on that person's prior conduct. A property manager is given limited room
to determine whether an applicant poses a direct threat by asking certain

questions. However, the same questions must be asked of all applicants and not

just those applicants the property manager suspects may have a disability."^^
HUD regulations make it unlawful for a property manager to ask applicants

about their own handicaps or any person associated with that applicant's
handicap."*^ However, the regulations do permit certain inquiries regarding an

applicant's ability to meet the requirements ofownership or tenancy and the sale

or use of drugs, provided that these inquiries are made of all applicants.^"
Applicants, in addition to being asked about prior landlords and references, can

be asked "whether the applicant's tenancy poses a direct threat to the health or

safety of other individuals or would result in substantial physical damage to the
property."^' But, if a reasonable accommodation would eliminate the risk, the
property manager would still be required to make one.^^

11. Analysis of the Major Questions Raised in Cases Involving
Abusive, Disruptive, or Destructive Residents

A. The Relationship Between the Duty to Reasonably Accommodate
and the Direct Threat Exception

1. Must Reasonable Accommodations Be Attempted When a Resident Poses
a Direct Threat?—The FHA states that a property manager must "make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford [a disabled] person equal
opportunity to use and enjoy a dwelling."^^ However, the unique problem that

is illustrated by the cases discussed in this section, involving residents who are
disabled and become disruptive, abusive, or destructive, is determining the

47. Id. (footnote omitted).

48. Robert M. Levy & Leonard S. Rubenstein, The Rights of People With Mental
Disabilities 185(1996).

49. The HUD regulations state, "It shall be unlawful to make an inquiry to determine whether
an applicant for a dwelling, a person intending to reside in that dwelling ... or any person

associated with that person, has a handicap or to make an inquiry as to the nature or severity of a

handicap of such person." 24 C.F.R. § 100.202(c) (2001).

50. Id.

51. Levy & Rubenstein, supra note 48, at 185. HUD regulations state, "Nothing . . .
requires that 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." 24 C.F.R. § 100.202(d).

52. H.R.Rep.No. \m-l\\,2iX29{\9U\ reprinted in 1988 U.S.C.C.A.N. 2173,2190.

53. 42 U.S.C. § 3604(f)(3)(8) (1994 & Supp. 1999).



768 INDIANA LAW REVIEW [Vol. 36:759

relationship between the duty of a property manager to make reasonable
accommodations and the direct threat exception.

Whether a property manager must attempt to reasonably accommodate a
resident posing a direct threat is a question that several district courts have

answered. A property manager must attempt to reasonably accommodate a
resident posing a direct threat and show that no reasonable accommodation will
sufficiently reduce the nature ofthe threat before the property manager may seek
eviction ofthat resident.^'^ It also appears that a property manager may reach the
conclusion that no reasonable accommodation will sufficiently reduce the nature

of the threat posed by the resident and proceed with eviction;^^ however, this

conclusion cannot be arrived at lightly because if not supported by an adequate

foundation, it is not likely to hold much weight in court.
Several additional questions raised by these conclusions are addressed in Part

II.A.2-3 of this Note. These questions are: how can a property manager
demonstrate that no accommodation will sufficiently reduce the nature of the

threat posed by a resident? and what "attempts" to reasonably accommodate a
resident are sufficient?

Roe V. Sugar River Mills Associates addressed the relationship between the
duty to reasonably accommodate and the direct threat exception. The court
concluded that the standards established in the context of Section 504 of the

Rehabilitation Act were determinative in arriving at the conclusion that a

property manager must first attempt to reasonably accommodate a disabled
resident who poses a direct threat and then demonstrate that no reasonable
accommodation will sufficiently reduce the nature ofthe threat before a property

manager can proceed with an eviction.^^
In Sugar River Mills, the plaintiff, James Roe, who suffered from a mental

illness, threatened an eighty-two-year-old resident of Sugar River Mills with

physical violence and used "obscene, offensive and threatening language."^^

Roe's behavior on one occasion led to his conviction for disorderly conduct. The
threatened tenant gave notice to vacate the premises. Sugar River Mills

threatened to evict Roe based on his conduct, and Roe filed a claim against Sugar
River Mills under the FHA. The court denied a motion for summary judgment
for the defendant apartment complex.^*

Sugar River Mills argued that it was not required to make any attempt to
reasonably accommodate Roe because, pursuant to 42 U.S.C. § 3604(f)(9), Roe's
conviction for disorderly conduct clearly indicated he was a "direct threat to the
health or safety ofother individuals."^^ Roe argued that his conduct was a direct
result of his mental handicap and thus. Sugar River Mills could evict him under

54. See Roe v. Hous. Auth. of Boulder, 909 F. Supp. 814, 822-23 (D. Colo. 1995); Roe v.

Sugar River Mills Assocs., 820 F. Supp. 636, 640 (D.N.H. 1993).

55. See Arnold Murray Constr., L.L.C. v. Hicks, 621 N.W.2d 171, 175 (S.D. 2001).

56. Sugar River Mills Assocs., 820 F. Supp. at 640.

57. Id. at 637.

58. Id. at 640.

59. Id. at 638 (quoting 42 U.S.C. 3604(0(9) (1992 Supp.)).



2003] FHAA'S REASONABLE ACCOMMODATION 769

the exception only ifhe continued to be a threat to the safety ofothers after Sugar

River Mills had attempted to reasonably accommodate his handicap.

The court ultimately agreed with Roe based on the legislative history of the
FHAA, which indicated that the House Judiciary Committee intended that courts
should apply the standard set out in School Board ofNassau County v. Arline.^^

In Arline, the Court stated that an employer must attempt to reasonably

accommodate an employee with tuberculosis by minimizing the risk to other

employees, so long as the employee was "otherwise qualified" to retain her
position.^' The excerpt from the House Report that the court relied on in
applying the Arline standard to the provisions of the FHA stated that although
housing need not be made available to a person whose residency "can be shown
to constitute a direct threat and a significant risk ofharm to the health and safety

of others, [ijf a reasonable accommodation could eliminate the risk, entities

covered under this Act are required to engage in such accommodation."^^ The
Sugar River Mills court held that "the Act requires [the property manager] to

demonstrate that no 'reasonable accommodation ' will eliminate or acceptably

minimize the risk ... to other residents."" The court left open the question of
"whether any 'reasonable accommodation' would in fact permit [the] plaintiffto

live, peaceably and safely, among the other tenants at Sugar River Mills. "^"^ The
court offered no suggestion as to which party had the burden to suggest an

accommodation.

Otherjurisdictions have adopted the rationale used in Sugar River Mills. Roe
V. Housing Authority ofBoulder^^ involved facts similar to Sugar River Mills f"^

Roe, an elderly man suffering from a bipolar disorder, was threatening and
abusive towards other tenants. The behavior culminated in an incident in which
Roe struck another tenant, who required medical treatment as a result. The
landlord sought to evict Roe. The court dismissed a motion for summary
judgment by the landlord and held that "assuming Roe is handicapped or
disabled, before he may lawfully be evicted [the housing authority] must
demonstrate that no 'reasonable accommodation ' will eliminate or acceptably
minimize any risk Roe poses to other residents at [the housing complex]."^^

While these cases held that a property manager must attempt to reasonably
accommodate a resident who poses a direct threat, these courts provided no
guidance regarding what attempts may be sufficient or how a property manager
can "demonstrate" that no accommodation will reduce the nature of the threat.^*

60. /^. at 639.

61. Id. (citing Sch. Bd. of Nassau County v. Arline, 280 U.S. 273, 287-88 (1987)).

62. /£/. at 640 (citing H.R. Rep. No. 100-711, at 29 (1988), reprm/e^m 1988 U.S.C.C.A.N.

2173, 2190) (emphasis added)).

63. Id. (emphasis added).

64. Id.

65. 909 F. Supp. 814 (D. Colo. 1995).

66. Mat 822.
67. Id. at 822-23 (emphasis added).

68. As the court in Sugar River Mills stated, there is a question "whether any 'reasonable



770 INDIANA LAW REVIEW [Vol. 36:759

The courts' interpretation of the FHAA, while focused on the policy aim
established by Congress to protect individuals with disabilities, establishes a

difficult standard for a property manager to meet. In order for the property
manager to "demonstrate that no reasonable accommodation" will minimize the
risk, the property manager faces the extreme difficulty oftrying to prove that an
unknown, and perhaps infinite, number of potentially reasonable
accommodations will not work.

2. How Can a Property Manager Demonstrate That No Reasonable
Accommodation Will Alleviate the Nature of a Direct Threat Posed by a
Resident?—The court in Arnold Murray Construction, LLC. v. Hicks, which
adopted the holding of Sugar River Mills, offers some guidance on how a
property manager could demonstrate that no reasonable accommodation would
alleviate the nature of the direct threat.^^ In this case. Hicks, a tenant of Arnold

Murray Construction (AMC), suffered from a brain injury that caused, among
other effects, uncontrollable emotional outbursts. Hicks engaged in threatening

and abusive conduct towards other tenants on a number of occasions. This
behavior included yelling profanities, staring and screaming at neighbors, and

appearing nude in the presence ofother tenants. As a result ofthis conduct, other
tenants said they were fearful for their safety. AMC began eviction proceedings
against Hicks. Hicks raised a defense, asserting that he was entitled to
reasonable accommodation of his handicap under the FHAA before AMC could
evict him.^^

The trial court concluded that Hicks did pose a direct threat to the health and
safety of other tenants and "because AMC had shown that no reasonable
accommodation would eliminate or acceptably diminish the risk Hicks posed,
AMC was not required to show that a reasonable accommodation had been
made."^' Hicks argued on appeal that before he could be evicted, AMC must first
attempt to reasonably accommodate his disability.^^ The South Dakota Supreme
Court rejected this argument and upheld the trial court's finding that no

reasonable accommodation would diminish the threat Hicks posed and that once
AMC made this determination it was under no further obligation to attempt to
accommodate Hicks.^^

In making its decision, the court looked at the legislative history of the
FHAA, as well as the decisions in Sugar River Mills and Housing Authority of
Boulder?^ The court agreed with the outcome of both of these cases; however,
the court added, "[w]e do not believe that Congress intended accommodations

to be attempted or implemented if there is no reasonable expectation that the

accommodation' would in fact permit plaintiffto live, peaceably and safely among the other tenants

at Sugar River Mills." Sugar River Mills Assoc, 820 F. Supp. at 640.

69. Arnold Murray Constr., L.L.C. v. Hicks, 621 N.W.2d 171, 175 (S.D. 2001).

70. Mat 173.
71. Id.

72. Mat 174.
73. Id.2X\lA, 176.

74. Id. at \74'75.



2003] FHAA'S REASONABLE ACCOMMODATION 77

1

accommodation will protect the other tenants."^^ The court stated that once "the

landlord shows that no reasonable accommodation will curtail the risk, its duty

to accommodate ceases."^^

The conclusion that no accommodation would alleviate the risk was based
on the testimony ofthe property manager and the tenant. The property manager,

who according to the court had extensive experience dealing with the challenges
faced by residents with disabilities, testified that "she did not believe any

reasonable accommodation would reduce the risks posed by [the tenant].
"^^

Although the court did not specifically state that the tenant had the burden of

suggesting a reasonable accommodation, the court noted that the tenant failed to

counter the property manager's testimony with any testimony of his own
suggesting that there was an accommodation that would alleviate the risk

presented by his conduct.

The result in Hicks is consistent with the congressional policy of integrating
people with disabilities into mainstream society while at the same time

considering the needs of property managers and neighboring residents. The
landlord does not have to needlessly attempt to accommodate a resident if there

is truly nothing that can be done to reduce the nature of the threat posed by the

disabled resident. As the trial court stated in Hicks, "to require an 'automatic
attempt to accommodate a dangerous tenant would needlessly place other

residents in the tenant's building at risk.'"^^

A danger of relying on testimony by a property manager that no reasonable
accommodation will alleviate the risk is that the testimony is not necessarily

reliable. Property managers have an incentive to say that they have made every
effort to accommodate a resident and that no such accommodation exists because
presumably a property manager will want to be rid of a resident who is causing
problems. This desire to be relieved of a problem resident may encourage
property managers to quickly conclude that no reasonable accommodation can
be made, and, thus, they are not required to attempt any accommodation when,

in fact, an accommodation could possibly alleviate the threat.

Beyond involving someone experienced with dealing in the special needs of
handicapped residents as a property manager, the court in Hicks offers no insight

regarding other ways a property manager might successfully show that no
reasonable accommodation would sufficiently reduce the risk posed by a
resident. Property managers with no experience in dealing with these special

needs face a difficult situation. One option would be to hire or consult with
someone with experience in this area. For a property manager with a large
number of residents to manage and the financial resources to do so, it may be
well worth the expense to obtain the expertise ofsomeone experienced in dealing
with the special needs ofhandicapped residents. However, this may put an undue
financial burden on a property manager with a small number of residents to

75. /£/. atl75.

76. Id.

11. Id. at 116.

78. Id. at 175.



772 INDIANA LAW REVIEW [Vol. 36:759

manage and limited financial resources. Regardless of the property manager's
financial resources, this additional cost will ultimately be passed on to all
residents, who may not have the financial resources to meet the increased cost of
housing.

A more balanced solution is for property managers to work with residents
and their physicians or social workers to develop an appropriate accommodation.

Proposed accommodations can be evaluated in light ofthe standards enunciated
in Davis regarding "fundamental alteration" and the imposition of "undue
financial and administrative burdens."^^ After such interaction, the property

manager should have a rational basis for concluding whether any ofthe proposed
accommodations will alleviate the nature of the risk and whether the
accommodations are reasonable in light of the Davis standards. An
accommodation that will fix the problem will save both the property manager and
resident from litigation. However, even if the matter proceeds to litigation, this
interaction provides a property manager with a basis to testify in court that there
is no reasonable accommodation that will acceptably reduce the nature of the
risk.

An interactive process can produce beneficial results, but several circuit
courts have held that engaging in an interactive process is not mandatory under

the FHA. The Sixth Circuit has stated that unlike the employer/employee
relationship, where some courts have imposed an obligation to engage in an
interactive process based on ADA regulations,^^ no such duty to engage in an
interactive process with a resident by the property manager is required by the
"language in the Fair Housing Act or in the relevant sections ofthe Department

of Housing and Urban Development's implementing regulations."^' Similarly,
in a zoning case, the Third Circuit declined "to extend the 'interactive process'

requirement that exists in the employer-employee context of the Rehabilitation

Act to the housing and land use context of the FHAA."^^
Although an interactive process may not be required under the current law,

it is also certainly not prohibited. Residents and property managers who reject
the use of the interactive process simply because it is not required by law

overlook the positive results that will be achieved if the resident and property

79. Southeastern Cmty. Coll. v. Davi^, 442 U.S. 397 at 410, 412 (1979); see also Sch. Bd.

ofNassau County v. Arline, 480 U.S. 273, 288 n. 17 (1987). HUD draws upon this language in its
comments to 24 C.F.R.§ 100.204 when it states, "A housing provider is required to make

modifications in order to enable a qualified applicant with handicaps to live in the housing, but is

not required to offer housing of a fundamentally different nature." Implementation of the Fair

Housing Amendments Act of 1988, 54 Fed. Reg. 3232, 3249 (Jan. 23, 1989).

80. ADA regulations state, "To determine the appropriate reasonable accommodation it may
be necessary for the [employer] to initiate an informal, interactive process with the [employee] with

a disability in need of the accommodation." 29 C.F.R. § 1630.2(o)(3) (2002).

81. See Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1047 (6th Cir. 2001);

see also Lapid-Laurel, L.L.C. v. Zoning Bd. ofAdjustment ofthe Township of Scotch Plains, 284

F.3d 442 (3d Cir. 2002).

82. Lapid-Laurel. LLC, 2S4F.3d ai 446.



2003] FHAA'S REASONABLE ACCOMMODATION 773

manager are able to arrive at a workable accommodation. One such positive
result is that the parties avoid litigation, which would reduce the financial impact

to either party. The most important result is that residents, who are likely to have
a difficult time finding new housing, are not forced to move from their homes.

3. What Attempts by a Property Manager to Reasonably Accommodate a
Resident Posing a Direct ThreatAre Sufficient?—The question ofwhat attempts
by a property manager to make reasonable accommodations for a resident are
sufficient is not a question that has been clearly answered by the courts. From
the standards laid down by the Supreme Court in Davis, it is established that a
property manager is not required to make a reasonable accommodation that
involves a "fundamental alteration" ofthe nature ofa program or imposes "undue

financial and adm inistrative burdens."^^ It does not appear that most ofthe courts
dealing with cases involving residents who pose a direct threat have taken these
standards into consideration.

Groner v. Golden Gate Gardens Apartments demonstrates what attempts by

a property manager to reasonably accommodate a resident are sufficient.^'* In this

case, Groner, who suffered from schizophrenia and depression, allegedly
disrupted the sleep ofhis upstairs neighbor by screaming and slamming doors in

his apartment throughout the night. After the apartment manager received

complaints about Groner' s conduct, she contacted his social worker to inform

him of the problem. From the time of the first complaint, numerous additional
complaints were submitted to the apartment manager, and periodically these

complaints were reported to the social worker. Although the social worker began

working with Groner to resolve the problem, the disturbances continued.^^

Golden Gate, in an attempt to alleviate the problem, soundproofed the front

door to Groner' s apartment and offered the neighbor the opportunity to move to
a different apartment within the complex or to terminate her lease without

penalty. The neighbor refused Golden Gate's offer, citing as her reason for
refusal the unfairness ofexpecting her to move to resolve the problem caused by
Groner.^^ When Groner' s year-to-year lease expired. Golden Gate refused to
renew it and instead made Groner a month-to-month tenant. After the complaints
persisted. Golden Gate informed Groner his month-to-month lease was not being
renewed and that he must vacate. The social worker requested an extension for
Groner as an accommodation and Golden Gate agreed.*^ Additionally, the social
worker asked that Groner be provided with a regular twelve-month lease and that
he be contacted regarding any additional complaints about Groner. However,

after further complaints. Golden Gate informed the social worker that "it would
be too burdensome for Golden Gate to continue apprising [the social worker]

each time Groner caused a disturbance."^^ Groner was evicted and brought suit

83. Davis, 442 U.S. at 410, 412; see also Arline, 480 U.S. at 288 n.l7.

84. 250 F.3d at 1041-43.

85. Id.

86. Id.

87. Id

88. /c/. at 1042.



774 INDIANA LAW REVIEW [Vol. 36:759

under the FHA. The district court granted summaryjudgment in favor ofGolden
Gate; Groner appealed.^^

In upholding the lower court's decision, the Sixth Circuit Court of Appeals
stated:

Because Golden Gate has a legitimate interest in ensuring the quiet
enjoyment oiall of its tenants, and because there has been no showing

of a reasonable accommodation that would have enabled Groner to
remain in his apartment without significantly disturbing another tenant,

Groner has failed to raise a genuine issue of material fact as to a
violation of his rights under ... the Fair Housing Act . . . .^^

In his appeal, Groner suggested four possible accommodations. The first
suggestion was that his upstairs neighbor move to another apartment. The court
rejected this accommodation for several reasons. First, Groner would have likely
disturbed any tenant who occupied the upstairs apartment and Golden Gate could
not lawfully force the upstairs neighbor to vacate. Groner next suggested that a

"hard of hearing" tenant be placed in the upstairs apartment. However, Groner

was unable to show that there were any hard of hearing tenants within the
complex. Third, Groner suggested that his social worker be contacted any time

a complaint was received. The court rejected this because Golden Gate had
already attempted this remedy and it proved to be unsuccessful. Additionally, the

court stated that "such an indefinite arrangement, . . . would likely have imposed

an undue administrative burden on the Golden Gate staff."^' Lastly, Groner
argued that further soundproofing in his apartment could alleviate the problem.

Golden Gate argued that this posed safety concerns and that it would amount to
a fundamental alteration not required under the FPL\; the court agreed.^^

Groner demonstrates what type of extensive attempts to reasonably
accommodate a resident may be held sufficient. The decision by the court in
Groner seems to take into account several factors regarding the measures taken
to accommodate the resident. The court considered the duration ofthe problem.
The attempts to accommodate Groner were made over the course of
approximately one year. While it may be reasonable to communicate with a
social worker regarding a problem a few times, the court recognized that

requiring such communications to continue indefinitely imposes an undue

administrative burden on the property manager's staff. Likewise, the court

acknowledged that giving a resident a lease renewal or lease extension while the

resident seeks the appropriate treatment for the conduct causing the disturbance

is a reasonable accommodation; however, a property manger is not required to

continue these extensions or renewals when the treatment produces no positive
change in the situation.^^

89. Id. at 1043.

90. Id. at 1047 (emphasis added).

91. Mat 1046.
92. Mat 1047.
93. Id. at 1045-46.



2003] FHAA'S REASONABLE ACCOMMODATION 775

The court also looked at the nature ofthe conduct. Because ofthe intensely

factual nature of FHA cases, the determination of what is a reasonable
accommodation is likely to vary accordingly. Groner's conduct threatened the

health of his neighbors by depriving them of sleep. The court recognized the

unfairness of allowing the disruptive conduct to continue indefinitely after

previous attempts to remedy the problem, occurring over the course of

approximately a year, had failed. However, it should be noted that what

constitutes a reasonable attempt in this case would not necessarily be the same

in a situation where a resident is physically violent towards his neighbors. In the

case where a resident becomes physically violent, it would be inherently

unreasonable to allow the conduct to continue over any period of time. ^^ Both

situations are problematic and require expedient resolution, but the urgency of

resolving the situation varies because of the nature of the risk.

Although the court in Groner does not explicitly state its reliance on the

standards established by the Court in Davis and Arline, its reasoning for rejecting

some of Groner's proposed accommodations uses language from those cases.
For example, the court stated that requiring the Golden Gate staff to contact

Groner' s social worker every time a complaint was received could pose an undue

administrative burden on the staff as mentioned in both Davis and Arline.^^ The

Davis standards, as well as the duration of the problem and the nature of the

conduct, should all be considered when determining whether a property manger
has made sufficient attempts to reasonably accommodate a resident.

B. Who Should Bear the Burden ofProposing and Implementing
the Accommodation?

The courts have not consistently answered the question of who bears the
burden ofproposing and implementing an accommodation that will alleviate the

nature of a direct threat. The circuit court in Groner stated that the FHA
"imposes an affirmative duty upon landlords reasonably to accommodate the

needs of handicapped persons."^^ Does this mean that a property manager is
required to bear the entire burden ofproposing and implementing an appropriate

accommodation, or does this mean that once an appropriate accommodation is
proposed by the resident the property manager is under a duty to see that it is

implemented? I propose that the latter view is the better one, and the one where

a positive result is most likely to be achieved. However, there is authority in

support of both positions.

Some courts seemingly suggest that the entire burden is on the property
manager. The court in Roe v. Sugar River Mills places the entire burden on the
property manager to show that no reasonable accommodation will be effective,^^

94. See infra notes 120-22 and accompanying text.

95. Groner, 250 F.3d at 1046.

96. Id. at 1044 (quoting United States v. Cal. Mobile Home Mgmt Co., 29 F.3d 1413, 1416
(9th Cir. 1994)).

97. See supra note 63 and accompanying text.



776 INDIANA LAW REVIEW [Vol. 36:759

which implies that the property manager is responsible for proposing an effective
accommodation with no assistance from the resident. This standard, which
places a heavy burden on the property manager and seemingly little burden on
the resident, is not necessary to be consistent with the language of the FHAA.
Neither the language of the FHAA, nor the legislative history indicates that the
burden is entirely on the property manager to propose a reasonable

accommodation or to show that no reasonable accommodation will be effective.
In fact, the exact language of § 3604(f)(3)(B) states that a property manager is
required "to make reasonable accommodations in rules, policies, practices, or
services."^^ This language does not lend support to a theory that the FHAA's
drafters intended that a property manager be responsible for both the proposal

and implementation of a reasonable accommodation. Rather, this language

indicates that a property manager is responsible for implementing a reasonable
accommodation once it has been proposed by the resident.

In Roe V. HousingAuthority ofBoulder, not only did the court conclude that
the landlord was responsible for showing that no reasonable accommodation
would alleviate the threat posed by the tenant, but the court also dismissed claims
by the landlord that he had no knowledge of the tenant's disability because the

tenant had failed to inform him.^^ The court stated that although the tenant had
not told his landlord that he suffered from a mental disability, the landlord could

develop that knowledge based on the tenant's behavior. '^° This implies that not

only is the burden on the property manager to develop and implement the

appropriate accommodations, but that the property manager is responsible for

assessing whether a resident is in fact suffering from a disability requiring an

accommodation. This presents an even more challenging situation for a property
manager, who in all likelihood has no medical training. Before any attempt at a
reasonable accommodation can be made, the property manager must deduce that

a resident is suffering from a disability that entitles the resident to reasonable

accommodation protection. This suggests that any property manager wishing to

avoid litigation should operate under the assumption that every disruptive,

abusive, or destructive resident has a disability and is entitled to reasonable

accommodation protection. While all residents should have a right to privacy,
it would be reasonable to expect a resident with a disability that causes him to be
disruptive, abusive, or destructive to inform the property manager that he is
entitled to reasonable accommodation under the provisions ofthe FHA in order
to receive the accommodation which would allow him to remain in his existing
housing environment. Making this disclosure to the property manager does not
need to involve a disclosure by the resident of the exact nature ofthe disability.

Groner v. Golden Gate Gardens Apartments^^^ supports the proposition that

98. 42 U.S.C. § 3604(f)(3)(B) (1994 & Supp. V 1999) (emphasis added).
99. 909 F. Supp. 814, 821-23 (D. Colo. 1995).

1 00. The court stated, "Knowledge of a disability or handicap may be acquired directly, by

observation, or from a third party." Id. at 821 (citing Schmidt v. Safeway, Inc., 864 F. Supp. 991,

997 (D. Or. 1994)).

101. 250 F.3d 1039 (6th Cir. 2001).



2003] FHAA'S REASONABLE ACCOMMODATION 777

the burden is on the resident to propose an accommodation. In reviewing the

case, the circuit court focused its attention on the question of whether the

plaintiff or defendant bears the burden of showing that an accommodation is

reasonable. '^^ This question indirectly addresses who bears the burden of
proposing the accommodation, because in order to argue the reasonableness of

an accommodation, an accommodation must have first been proposed. In

Groner, the plaintiff argued that "the burden of proving that a proposed

accommodation is not reasonable rests with the defendant."'^^ In addressing this

argument, the court stated that this was an issue of first impression for the Sixth
Circuit; however, it acknowledged that previously it had stated, "[P]laintiffs bear

the burden of demonstrating that the desired accommodation is necessary to

afford equal opportunity."'*^'* In examining cases brought under the

Rehabilitation Act in the Sixth Circuit, the court determined that the plaintiff

seeking an accommodation must show that it is reasonable. The court cited
Monette v. Electronic Data Systems Corp., in which the court stated, "The
disabled individual bears the initial burden of proposing an accommodation and

showing that that accommodation is objectively reasonable."'^^ This statement

clearly supports the proposition that the resident is the one who bears the burden
of proposing an accommodation.'^

The court concluded, based on precedent in the Sixth Circuit and the weight
ofother authorities, that the plaintiff does in fact bear the burden of establishing

the reasonableness of a proposed accommodation. '°^ It follows from this

conclusion that if a plaintiff bears the burden of establishing reasonableness at

trial, then it is also the plaintiff who bears the burden of proposing the
accommodation. Thus, if a property manager states that no accommodation

exists, then to be successful in court the resident would have the burden of

proposing an accommodation and the burden of establishing that the
accommodation is reasonable.

The Third Circuit also supports the proposition that residents have the burden

102. Mat 1044-45.
103. Id. at 1044 (quoting Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1 103 (3d Cir.

1 996)). In Hovsons, a nursing home developer brought suit under the FHA after the township
refused to grant a variance that would allow a nursing home to be buih in an area ofthe community

zoned for residential use only. The court held that "the burden should have been placed upon the

Township of Brick to prove that it was either unable to accommodate Hovsons or that the

accommodation Hovsons proposed was unreasonable." Hovsons, 89 F.3d at 1 103.

1 04. Groner, 250 F.3d at 1 044 (quoting Smith & Lee Assocs., Inc. v. City ofTaylor, 1 02 F.3d
781, 796 n.ll (6th Cir. 1996)).

105. Id. (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996))

(emphasis omitted).

106. According to the court in Groner, the Fourth and Fifth Circuits also place the burden of

proof on FHA plaintiffs to show that an accommodation is reasonable. Id. at 1 045 (citing Bryant
Woods Inn, Inc. v. Howard County, 1 24 F.3d 597, 603-04 (4th Cir. 1 997); Elderhaven, Inc. v. City
of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996)).

107. Id.



778 INDIANA LAW REVIEW [Vol. 36:759

ofproposing an accommodation. •'^^ Based on the text ofthe FHAA and the intent
of Congress, the court concluded that "the plaintiff bears the initial burden of
showing that the requested accommodation is necessary to afford handicapped
persons an equal opportunity to use and enjoy a dwelling, at which point the

burden shifts to the defendant to show that the requested accommodation is
unreasonable."^^^ Specifically, the court noted that the text of the FHAA
evidenced no intent to alter normal burdens from the plaintiff to the defendant.

On the element of reasonableness, the court concluded that it was bound to
follow its earlier decision in Hovsons, Inc. v. Township ofBrick,^^^ in which the

court held that the defendant bears the burden of showing that the

accommodation is unreasonable. The court indicated that this burden-shifting
approach made the most sense from a policy standpoint because the plaintiff is
in the best position to show what is necessary to afford an equal opportunity to
use and enjoy housing, while the defendant is "in the best position to provide
evidence concerning what is reasonable or unreasonable."'''

Additionally, under other sections of the FHA the resident is required to
request a specific accommodation. The HUD regulations related to §
3604(f)(3)(A), which permits disabled residents to make "reasonable
modifications of existing premises," states, "It shall be unlawful for any person

to refuse to permit, at the expense of a handicapped person, reasonable

modifications . . . if the /7ro/?o5^c? modification may be necessary ""^ These
modifications include such things as widening doorways and installing grab-bars

in bathrooms."^ If this same concept is applied to § 3604(f)(3)(B), it would
become clear that the disabled resident rather than the property manager bears the
burden of proposing an accommodation.

The courts should adopt a uniform standard similar to the one adopted by the
Third Circuit, which places the burden on the resident to propose an

accommodation and the burden on the property manager to demonstrate that it

is unreasonable."'' This is the most reasonable standard for all of the parties

involved, because the person with the disability is in the best position to assess

what type ofaccommodation, if any, will successfully reduce the threat posed to

other residents. Additionally, a resident is in the position to seek assistance from

a social worker or physician that is knowledgeable regarding the resident's

disability. The property manager is in the best position to produce evidence
regarding the unreasonableness of an accommodation.

1 08. Lapid-Laurel, L.L.C. v. Zoning Bd. ofAdjustment ofthe Township ofScotch Plains, 284

F.3d 442 (3d Cir. 2002) (plaintiff real estate developer argued that the zoning board's failure to

approve housing for the elderly handicapped violated the FHAA based on a disparate impact and
reasonable accommodation claim).

109. /^. at 458.

1 10. Id. (citing Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1 103 (3d Cir. 1996)).

111. Id.

112. 24 C.F.R. § 100.203 (2001) (emphasis added).

113. SCHWEMM, supra note 6, at § 1 1 .5(4)(b).

1 1 4. See supra note 1 1 1 and accompanying text.



2003] FHAA'S REASONABLE ACCOMMODATION 779

C When Does a Resident 's Conduct Become a Direct Threat?
There is no bright line rule for when conduct is sufficient to be considered

a direct threat because ofthe intensely factual nature ofeach case. However, the

legislative history ofthe FHAA does state that the determination that a resident
is a direct threat must be based on overt conduct and not mere speculation.''^

There are several cases that offer some additional guidance.
The Court in Arline suggested some factors that should be taken into

consideration when evaluating a direct threat in the context of the employment
of a disabled person with a contagious disease. These factors include the

duration of the risk and the nature, severity, and likelihood of the potential

harm."^ Although the Arline Court considered these factors in the context of an

employment situation, these factors also provide some helpful guidance in the
context of a housing situation. For example, in the case where a resident

physically harms another person or threatens to harm another person, the

likelihood ofharm is great; thus, the conduct poses a direct threat. Additionally,

if the conduct is ongoing and poses a health risk to neighbors ofthe resident (for

example, where a resident makes loud noises on a nightly basis, preventing a

neighbor from sleeping), then the conduct should also be considered a direct

threat. In situations where residents engage in conduct that causes minor damage
to their housing unit, the harm does not constitute a direct threat to the health or

safety of others.

Courts have held that conduct that is criminal in nature does constitute a

direct threat. InArnoldMurray Construction, LLC v. ///c^;s, the tenant engaged
in threatening and abusive conduct towards other tenants."^ Hicks had not been

convicted of any criminal conduct; however, despite the lack of criminal

prosecution, the court arrived at the conclusion that Hicks' behavior "clearly

amounts to the criminal activity ofdisorderly conduct.""* Based on this conduct,
the court held that Hicks did pose a direct threat to the health and safety of

others.''"

Stout V. Kokomo Manor Apartments^^^ demonstrates an extreme example of
a resident engaging in criminal conduct. In this case, the Indiana Court of

Appeals held that certain conduct by a tenant was so egregious that no attempt
at reasonable accommodation was necessary.'^' The conduct involved was the
alleged molestation ofa young tenant by another tenant's son. It is unclear from
the facts ofthe case whether at the time the eviction was sought the boy had been
subject to any formal legal proceedings regarding the alleged act of molestation.

115. See supra note 47 and accompanying text.

1 16. Sch. Bd. ofNassau County v. Arline, 480 U.S. 273, 288 (1987).

117. 621 N.W.2d 171, 173 (S.D. 2001).

118. /^. atl76n.3.

119. /c/. at 173.

120. 677 N.E.2d 1060 (Ind. Ct. App. 1997).

121. /^. at 165.



780 INDIANA LAW REVIEW [Vol. 36:759

The court did not determine whether the tenant that committed the act was in fact
disabled, but concluded that it did not matter because the nature of the conduct

constituted a direct threat to the health and safety of other individuals.'^^

Every case is extremely fact-oriented; therefore, analysis ofthe conduct must
be made on a case-by-case basis. However, it seems that conduct that is criminal
in nature is likely to be considered enough to constitute a direct threat to the

health and safety of others. Conduct that falls short of criminal conduct should

be evaluated in light of the factors discussed in Arline: the duration of the risk

and the nature, severity, and likelihood of the potential harm.'^^

D. What Type ofAccommodations Are Appropriate?

The type of accommodation that will be appropriate in any situation will
depend on the unique facts ofthat particular situation. There is no clear standard
for determining the appropriateness ofan accommodation. '^'* However, statutory

language and case law offer some guidance.
The language of § 3604(f)(3) states that an accommodation must be both

"reasonable" and "necessary to afford [a person with a handicap] equal

opportunity to use and enjoy a dwelling."'^^ In its discussion of the concept of

necessity, the Seventh Circuit stated it requires "at a minimum the showing that
a desired accommodation will affirmatively enhance a disabled plaintiff s quality

of life by ameliorating the effects of the disability."'^^

Additionally, the standards laid down by the Supreme Court in Davis
establish that a reasonable accommodation is one that does not require the

"fundamental alteration" of the nature of a program or impose "undue financial

122. Id.

123. Sch. Bd. of Nassau County v. Arline, 280 U.S. 273, 288 (1987).

124. 5eeHovsonsv. Township ofBrick, 89 F.3d 1096, 11 04 (3d Cir. 1 996) (court stated, "We
acknowledge that precisely what the 'reasonable accommodations' standard requires is not a model

of clarity"); see also Daniel Barkley, The Meaning of Reasonable Accommodation, 6 J.

Affordable Housing & Community Dev. L. 249, 251 (1997).
125. The provision states that discrimination includes "a refusal to make reasonable

accommodations in rules, policies, practices, or services, when such accommodations may be

necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §

3604(f)(3) (1994 & Supp. V 1999) (emphasis added). These are almost identical to the
requirements cited by the Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), for
determining the appropriateness of a modification under the ADA. The relevant ADA provision,
42 U.S.C. § 1 2 1 82(b)(2)(A)(ii), contains language that parallels the accommodation language used

in § 3604(f)(3) ofthe FHA. The Court stated that "the statute contemplates three inquiries: whether

the requested modification is 'reasonable,' whether it is 'necessary' for the disabled individual, and

whether it would 'fundamentally alter the nature of the [program]." PGA Tour, Inc., 532 U.S. at
683 n.38. Although the fundamental alteration language is not included in the language under §

3604(f)(3) of the FHA, it is incorporated through the Supreme Court's decision in Southeastern

Community College v. Davis. See infra note 127 and accompanying text.

126. Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).



2003] FHAA'S REASONABLE ACCOMMODATION 781

and administrative burdens." ^^^ What constitutes an undue burden is a question
left unanswered by the language ofthe FHA and applicable case law. However,
the ADA, which also incorporates a reasonable accommodation provision in its
protections against employment discrimination, offers some guidance regarding
what amounts to an undue burden under its provisions. The statute codifies the
concept of "undue hardship" and lists factors to be considered in evaluating

"whether an accommodation would impose an undue hardship on a covered

entity."'^^ This list includes such factors as: the nature and cost of the

accommodation, the financial resources of the entity, the size of the entity, the

effect on the entity's expenses and resources, and the impact of an

accommodation on the operation of the entity.'^^ Although these factors were

drafted for application in an employment context, they are helpful in determining

the appropriateness of an accommodation in the housing context.^^^ A number
of these factors have been incorporated into the balancing test that some courts
use in determining the appropriateness of an accommodation in the housing

context.

This balancing test requires an analysis of whether the proposed

accommodation provides a benefit to the disabled person that outweighs the

burden to the property manager and other residents.'^' Groner, unlike many
other cases involving disabled residents who are disruptive, abusive, or
destructive, incorporates such a balancing test into its analysis of the

reasonableness of proposed accommodations.*^^ The court states that generally

courts should "balance the burdens imposed on the defendant by the

contemplated accommodation against the benefits to the plaintiff."*" Also, the

court states, "In determining whether the reasonableness requirement has been

met, a court may consider the accommodation's functional and administrative
aspects, as well as its costs."'^"*

The application of this balancing test to cases in which the resident poses a
direct threat may provide some insight. In all of these cases, the benefit to the
disabled residents is great; they will be able to continue living in their current

housing environment. Conversely, the cost to the property manager and other
residents may be quite large. The property manager may lose other residents as

127. Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 at 410, 412(1979). See also Arline, 480

U.S. at288n.l7.

128. 42U.S.C. § 12111(10).

129. /^. § 12111(10)(B).

130. Robert J. Aalberts, Suits to VoidDiscriminatory Evictions ofDisabled Tenants Under the

Fair HousingAmendments Act: An Emerging Conflict?, 33 REAL PROP. PROB. &Tr. J. 649, 672-74
(1999).

131. See Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 303 (2d Cir. 1998);

Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995); Anast v. Commonwealth Apartments, 956 F.

Supp. 792, 801 (N.D. 111. 1997); see also Aalberts, supra note 130, at 669.

132. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001).

133. Id.

134. Id.



782 INDIANA LAW REVIEW [Vol. 36:759

the result of the disruptive, abusive, or destructive resident. These other

residents who are forced to move will likely suffer financial loss as a result of
moving expenses or increased housing costs. Other residents who do not move
may suffer physically or emotionally as a result of living with the disruptive,
abusive, or destructive resident. Additionally, the property manager may be
required to incur "reasonable costs" to implement an accommodation.'^^

Property managers with limited resources may be unable to handle their routine
administrative matters while also trying to work out a solution with a disabled
resident.

Courts have generally held that a property manager may be required to incur
some costs to implement the accommodation.'^^ However, HUD has
promulgated regulations stating that services such as counseling and medical care

are not encompassed within this idea; there is no requirement that housing

providers offer services such as counseling and medical care.'^^ So what types
of reasonable accommodation have been held appropriate in the past?

Different types ofaccommodation may be appropriate depending on the type
ofsituation. In some situations a property manager can give the disabled resident
reasonable time to obtain the appropriate treatment; other disruptive, abusive,

destructive behavior can be controlled through the proper use ofmedication, and

in other situations behavior can be modified so that the disabled resident does not

disturb neighbors. Where time to receive treatment, compliance with a
prescribed course ofmedication, or behavior modification can reduce the nature

of the threat, the accommodation is generally deemed reasonable and does not
place an undue burden on the property manager or other residents.

When a mentally ill person's abusive conduct arises from failure to take
prescribed medication, the appropriate accommodation may be that continued
residence be conditioned upon taking the medication. The use of directly

observed therapy may be the appropriate means to ensure that a resident takes the
prescribed medication. A failure to abide by this condition, which results in
additional instances of disruptive or abusive conduct, would then result in
eviction. A limit must be set on how many times this failure to take medication
can occur before eviction will result. If attempts at reasonable accommodation

were to start anew every time that residents fail to take their necessary
medication, then the property manager and other residents would be subjected to
the threatening conduct indefinitely.'^^ The question that presents itselfwith this

135. SeeSalute, 1 36 F.3d at 300; Hovsons v. Township ofBrick, 89 F.3d 1096, 1 104(3dCir.

1996).

136. See Hovsons, ^9 F3d at WOA.

137. The comments to 24 C.F.R. § 100.204 state, "The Department wishes to stress that a

housing provider is not required to provide supportive services, e.g., counseling, medical, or social

services that fall outside the scope of the services that the housing provider offers to residents."

Implementation ofthe Fair Housing Amendments Act of 1988, 54 Fed. Reg. 3232, 3249 (Jan. 23,

1989).

138. In Housing Authority ofLake Charles, La. v. Pappion, a case brought under Section 504

ofthe Rehabilitation Act, the housing complex sought to evict a tenant who suffered from paranoid



2003] FHAA'S REASONABLE ACCOMMODATION 783

solution is who bears the responsibility for monitoring the resident's compliance
because a property manager is not required to engage in activities that constitute

"social services.
"'^^ The logical answer would seem to be that the responsibility

falls upon the resident and his social worker or physician to ensure compliance.

If additional incidents of disruptive, abusive, or destructive conduct occur, then

it would fall upon the resident to prove he had been taking his medication. If he

could not prove this, then the property manager would have the right to evict the

resident.

In other cases, giving the resident time to seek treatment was deemed a
reasonable accommodation. In City Wide Associates, v. P^«//^/(i,''*° a tenant with

a psychiatric disability beat on the walls ofher apartment, causing minor damage.

This case, brought under Section 504 ofthe Rehabilitation Act, involved a tenant

who suffered from auditory hallucinations. The woman caused damage to the
walls of her apartment by throwing objects at them to drive away the voices that
she heard. As a result, the landlord sought eviction. The court required that
before the tenant could be evicted, she was allowed to have time to obtain mental
health services that could be effective in moderating her behavior.'"" The court
reasoned that the cost ofthe damage caused to the apartment was small compared
to the benefit to the tenant.''*^ Ultimately, the solution involved a modification

ofthe woman's behavior. The solution was creative and simple; the woman was

schizophrenia. 540 So. 2d 567 (La. Ct. App. 1989). The tenant had allegedly threatened to kill one

ofthe other residents and engaged in other disruptive and abusive conduct. The tenant alleged that

this disruptive conduct was a result of his failure to take medication and that at the time of trial he

was taking the medication. The court held that the housing complex was within its rights in

terminating the tenant's lease. Id. at 570. The court stated:

[T]here is no guarantee that defendant will take his medication regularly in the

future. . . . [D]efendant at any time could decide he doesn't need treatment or

medication and again exhibit bizarre behavior. If that were to occur, the parties would

be in the same position as they are in this case and making the same arguments.

Id.

In another case, Frank v. Park Summit Realty Corp., brought as a nuisance action, the

plaintiffs nephew, who suffered from schizophrenia, periodically resided in the plaintiffs

apartment. 175 A.D.2d 33 (N.Y. App. Div.), rev'd, 587N.E.2d 287 (N.Y. 1991). The nephew's

condition was controlled by the appropriate medication, but when he failed to take the medication

his behavior would become "bizarre and disturbing." Id. Repeated incidents of nudity in public,

verbal abuse, profanity and vulgarity, and threats of assault were reported. The appellate court

recognized that allowing the cycle to continue, where the nephew's use of his medication was on

again, off again, was unfair to the property manager and other residents. In finding for Park

Summit, the court stated, "[Park Summit] and its guests and staff had already been forced to endure

an intolerable and continuing nuisance." Id. at 34-35.

139. 54 Fed. Reg. 3232, 3249.

140. 564N.E.2d 1003 (Mass. 1991).

141. /^. at 1005.

142. Id



784 INDIANA LAW REVIEW [Vol. 36:759

given a "nerf bat to use when striking the walls to lessen the damage. ^'^^ This
case demonstrates that creativity can provide a solution. While this
accommodation may not address the woman's overall mental health, it does
provide a solution that will allow her to remain in her home.

Other cases demonstrate that more drastic accommodations may not be
workable. In Marthon v. Maple Grove Condominium Association, the
condominium complex consulted with acoustical consultants "to determine a
solution for the noise transmission between units."

''^'^ Although the consultants

made recommendations to reduce the noise, the report concluded that the
suggested measures "will not adequately attenuate or mask the offending
noise.

"'"^^ The use of a white noise machine or ear plugs by the disturbed
neighbor were also offered as suggestions, but, for reasons that are unclear,
proved to be ineffective and inappropriate.

As these cases demonstrate, there are a variety of simple accommodations
that may alleviate conduct that constitutes a direct threat. However, some
accommodations may prove to be unworkable. Additionally, all accommodations
must be viewed in light of the cost/benefit balancing test, which most courts
deciding cases involving disruptive, abusive, or destructive residents seemingly

have failed to consider. The cost ofeviction to a disabled person and the cost of
not evicting to the property manager and other residents can both be severe.

However, the benefit that can be achieved through a workable accommodation

is great so it is important that this cost/benefit analysis be performed carefully.

The ADA factors for determining whether an accommodation poses an undue
burden are helpful and should be considered when performing this analysis.

Conclusion

These cases present difficult problems because ofthe conflicting interests of

the parties involved. It is important that the interests of disabled people and the

aims of Congress to integrate disabled individuals into society are met, and

everything possible should be done to make reasonable accommodations that will
allow this goal to be achieved. However, it is possible that not all people are

meant to live in mainstream society. Individuals who have exhibited conduct that
is harmful to other people should not live in a manner that endangers other

peoples' health and safety. Congress specifically included the direct threat

exception in the FHAA to avoid this situation.
The law says that a property manager must attempt to reasonably

accommodate a disruptive, abusive, or destructive tenant, if an accommodation

1 43

.

Bazelon Center for Mental Health Law, Fair Housing Information Sheet #4,

Using Reasonable Accommodations to Prevent Eviction, available at

http://bazeIon.org/fhinfosheet4.html.

144. 101 F. Supp. 2d 1041, 1046 (N.D. 111. 2000) (resident suffering from Tourette's

Syndrome engaged in involuntary throat clearing, hooting, barking, foot stomping, and other vocal

and motor tics on a nightly basis resulting in a neighbor being unable to sleep).

145. Mat 1047.



2003] FHAA'S REASONABLE ACCOMMODATION 785

will alleviate the nature ofthe direct threat posed by that tenant. However, there

is little additional guidance regarding how this goal is to be achieved. Standards
developed by case law and contained in statutes under the Rehabilitation Act of

1 973 and the ADA offer some helpful guidance on the appropriate course of
action for property managers. The burden should not be placed entirely on the

property manager to propose and implement an accommodation that will alleviate

the nature of a direct threat. The disabled resident should bear the primary

responsibility for proposing an accommodation that is reasonable, and the

property manager would then bear the responsibility to make sure the
accommodation is properly implemented. Although not required by the language

of the FHA, a process where the property manager engages in an interactive
process with a resident seems the likeliest way to arrive at an accommodation
that will meet the needs of all the parties involved. Before overlooking the use

of an interactive process, the parties need to consider the benefits that will be

achieved if a workable accommodation is developed. An accommodation that
will alleviate a direct threat will allow disabled residents to remain in their

homes, consistent with the policy aims of Congress, and will eliminate the

prospect of expensive litigation for all of the parties involved.