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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.
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