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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

 

  

The D.C. Court of Appeals recently handed down an important en banc decision reversing a trial's court order evicting a mentally ill tenant whose messy apartment violated the lease.  The court found that the tenant's request for a stay of the eviction proceeding to allow the tenant to receive services to clean up the apartment and thereby cure the lease violation constituted a request for a reasonable accommodation that should have been granted.  See Douglas v. Kriegsfeld Corp., 2005 WL 2600210.

Most importantly, the court held that a request for accommodation may be made up to the day the eviction order is entered.  It does not matter if the request came after the notice of termination was served or even after the cure period in the notice or the effective date of the notice has passed.  Secondly, the court found that even though the request for accommodation might be vague, the LL is required to engage in an "interactive process," that is the LL must respond and attempt to explore the nature and extent of the accommodation request before it can ultimately reject it.  Finally, even though the Fair Housing Act states that the protection from disability discrimination does not extend to individuals who pose a health and safety threat to others (42 USC 3604(f)(9)), the court found that the LL still has the obligation to explore whether the accommodation will remove that threat.

    

The decision also lays out the elements of a reasonable accommodation defense under the FHA.

1.    The tenant suffers from a disability.

2.    The LL knew or should have known of the disability.

3.    An accommodation of the disability may be necessary to afford the tenant an equal opportunity to use and enjoy her apartment.

4.    The tenant requested a reasonable accommodation, and

5.    The LL refused to grant a reasonable accommodation.