Delay in Approving Reasonable Accommodation Request Didn’t Constitute Denial

Facts: An elderly Section 8 resident with Alzheimer’s disease rented a studio apartment at a senior living community. After her diagnosis, based on her disability, she requested a reasonable accommodation to move “to preferably a two bedroom to accommodate a live-in caregiver or possible one bedroom.”

A month later, the management approved the transfer of the resident to the next available one- or two-bedroom unit as long as she qualified for the unit. However, all two-bedroom units were rented. When the site manager subsequently offered the resident two one-bedroom units, she declined to accept those first two transfers because she preferred a two-bedroom option when it became available. The resident eventually accepted the site’s third offer of a one-bedroom unit in August 2015. After receiving approval from the local housing commission for a live-in caregiver under her Section 8 voucher, she transferred into the one-bedroom unit in September 2015.

The following month the resident submitted a discrimination complaint to the state’s fair housing commission. She alleged that the site owner had refused reasonable accommodation requests for a larger unit.

Within a few weeks of the complaint, the manager emailed the resident and notified her that she could transfer to the next available two-bedroom unit when a resident vacated. Three days later, the manager advised her that a unit would be available in January 2016.

In December 2015, an employee told the resident that she was no longer permitted to move to a two-bedroom unit. She wasn’t eligible for another unit transfer under the terms of her Section 8 voucher unless she could satisfy an exception and receive approval from the local housing commission for that transfer. She completed the paperwork for approval for a two-bedroom unit by Dec. 28, 2015, and transferred to a two-bedroom unit at the site on Jan. 5, 2016.

The state’s fair housing commission closed its investigation of the resident’s complaint, finding that she had received the accommodations she requested and there was “insufficient evidence” to show that the accommodations had been denied. The resident then filed a lawsuit in federal court, claiming that the site owner denied her request for a reasonable accommodation.

Ruling: A California district court granted a judgment without a trial to the site owner.

Reasoning: A reasonable accommodation under the Fair Housing Act (FHA) may include accommodating a disabled resident’s request to transfer to another unit in an apartment building. The evidence showed that the owner approved the resident’s request to transfer to a larger unit.

The resident argued that the one-month delay between her request and her receipt of written approval raises a triable issue regarding constructive denial. According to the court, this contention failed as a matter of law. The FHA doesn’t demand that housing providers immediately grant all requests for accommodation. The evidence here doesn’t show that the one-month delay was unreasonable or undue.

The resident also argued that there is a triable issue regarding whether the owner refused the request because the manager tried to place her into many undesirable one-bedroom units, including units in which a tenant had just died and units where there were known troublemakers living above or below the offered one-bedroom unit. According to the court, this argument failed because, although an owner may be required to make a reasonable accommodation, it doesn’t have to provide a disabled individual with the accommodation of her choice. Consistent with her written request, the manager offered her multiple one-bedroom units. And her preference for a more “desirable” unit doesn’t transform the management’s conduct into a violation of the FHA.

In addition, the management didn’t refuse the resident’s reasonable accommodation request to the extent that she sought to transfer to a two-bedroom unit, because no units were available when she submitted her request. Before an owner may incur liability under the FHA for failing to provide an accommodation, provision of the accommodation must be possible. Even with the lack of available units, the manager engaged in an “interactive process” to fulfill her request for a transfer to a two-bedroom unit. The process included notifying the resident that she needed local housing commission approval to transfer into a two-bedroom unit.

• Elliott v. QF Circa 37, LLC., June 2018