Applicable Laws & Policies
JOINT STATEMENT OF
THE DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT
AND THE DEPARTMENT OF JUSTICE
REASONABLE ACCOMMODATIONS UNDER THE
FAIR HOUSING ACT
3. Who qualifies as a person with a disability under the Act?
The Act defines a person with a disability to include (1)
individuals with a physical or mental impairment that
substantially limits one or more major life activities; (2) individuals
who are regarded as having such an impairment; and (3) individuals with
a record of such an impairment.
The term "physical or mental impairment" includes, but is not limited
to, such diseases and conditions as orthopedic, visual, speech and
hearing impairments, cerebral palsy, autism, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human
Immunodeficiency Virus infection, mental retardation, emotional illness,
drug addiction (other than addiction caused by current, illegal use of a
controlled substance) and alcoholism.
The term "substantially limits" suggests that the limitation is
"significant" or "to a large degree."
The term "major life activity" means those activities that are
of central importance to daily life, such as seeing, hearing,
walking, breathing, performing manual tasks, caring for
one's self, learning, and speaking.
(8) This list of major
life activities is not exhaustive. See e.g.,
Bragdon v. Abbott, 524 U.S. 624, 691-92 (1998) (holding that for
certain individuals reproduction is a major life activity).
6. What is a "reasonable accommodation" for purposes of the Act?
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.
ºThe Act makes it unlawful to refuse to make reasonable
accommodations to rules, policies, practices, or services when such
accommodations may be necessary to afford persons with disabilities an
equal opportunity to use and enjoy a dwelling.
15. What if a housing provider fails to act promptly on a
reasonable accommodation request?
ºA provider has an obligation to provide prompt responses to
reasonable accommodation requests. An undue delay in responding to a
reasonable accommodation request may be deemed to be a failure to
provide a reasonable accommodation.
Most leases include statements such as "PROHIBITED CONDUCT. You and
your occupants or guests may not engage in the following prohibited
activities: loud or obnoxious conduct; disturbing or threatening
the rights, comfort, health, safety, or convenience of others in or
near the apartment community, ......
Most leases note, "COMMUNITY POLICIES OR RULES: .....Our rules are
considered part of this Lease Contract. We may make reasonable changes to
written rules, effective immediately, if they are distributed and applicable
to all units in the apartment community and do not change the dollar amounts
on page 1 of this Lease Agreement."
In other words you can designate all units in a building as non-smoking
with a written notice, as well as advertise and attach an addendum or note
in the Lease Agreement for future residents that those particular units are
When someone is forced to move because the apartment has become
uninhabitable it can be considered "constructive eviction." A smoking
resident who originates the problem should be told when a resident with a
chronic illness is harmed by the smoke, that the tobacco smoke creates a
violation of the lease’s health and safety clause and all smoking must be
done outside and away from the building while living there or until another
unit opens up adjoining other smokers. No one is saying they must stop
smoking or move. This is simply a health issue that requires an
You may wish to do some research on the Internet on this problem. Just
Google "Smoke-Free Apartments." Below is an excerpt from the Smoke-Free
Environments Law Project of Ann Arbor, MI;
Disabilities Act and Fair Housing Act. Non-smoking tenants who are
afflicted with breathing disorders may use the Americans with
Disabilities Act and/or the Fair Housing Act to bring legal action
against landlords for not making reasonable accommodations to protect
these tenants from secondhand smoke in common areas or in their
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