"Reasonable Modifications:" What A Landlord Needs To Know About This Important Topic

The term "reasonable modifications" is used throughout the federal Fair Housing Act as well as Wisconsin's Open Housing law (which for the most part adopts federal law). Requests for reasonable modifications by tenant are on the rise.

The Basics:

Wisconsin's Open Housing law, which can be found at sec. 106.50, Wis. Stats., states that a landlord cannot refuse to permit, at the expense of a person with a disability, reasonable modifications to the housing by a tenant, if the modifications are necessary to afford the disabled tenant the full enjoyment of the housing. Sec. 106.50(2r)(3), Wis. Stats.

Reasonable modifications can include structural changes to the interior of the property or the exterior of the property. Reasonable modifications can be made to common areas and public use areas of the property as well.

The tenant is responsible for paying for the reasonable modifications to the property. It is also the responsibility of the tenant to maintain the modification if it is used exclusively by the tenant. If the modification is in a common area and other tenants also use the modification, the upkeep would be the responsibility of the landlord

Requesting A Reasonable Modification

A tenant is not entitled to a reasonable modification unless the modification is requested. The request can be verbal or written.

A tenant must obtain the landlord's approval before the tenant can move forward with the modification.

A landlord cannot condition the approval of the modification on the tenant obtaining special liability insurance.

There Must Be A Nexus Between the Disability and the Reasonable Modification

There must be an identifiable relationship or "nexus" between the requested modification and the tenant's disability. For instance an identifiable nexus would exist if a tenant using a wheelchair requests that a ramp be installed leading up to the apartment's front door. There would not be an identifiable relationship if a tenant that is mobility impaired requests that the landlord permit him to change the roofing from shaker shingles to clay tiles and fiberglass shingles becasue he believes the original shingles are less fireproof.

Examples of Reasonable Modifications:

- Installation of a ramp for a person using a wheelchair.

- Widening of the doorways in an apartment so that a tenant's wheelchair can pass through.

- Installing grab bars in a shower for a person with with mobility/balance issues.

- Allowing a tenant with a hearing disability to install a peephole and an extra loud doorbell.

- Replacing doorknobs with levers for a tenant with severe arthritis who has difficulty turning a doorknob.

What Is Reasonable?

There is not a clear "black and white" definition of what is reasonable in terms of a tenant's request for a reasonable modification. What is "reasonable" is a very fact intensive question and depends on the specific situation. Asking a landlord to tear down a wall dividing the two lower rental units in a 4-family so that the tenant using a wheelchair would have additional space, would most likely not be found to be reasonable as such a modification would greatly affect the landlord's rental property by changing it from a 4 family to a 3 family. But asking a landlord to lower the light switches throughout a unit as well as the counter tops in the kitchen, to allow a person using a wheelchair to enjoy full enjoyment of their apartment, would more than likely be found to be reasonable.

In the end, what is "reasonable" will be determined on a case by case basis by a Circuit Court Judge or an Administrative Law Judge, should a tenant file a discrimination complaint against a landlord for denying a request for reasonable modifications.

What Information May A Landlord Request From A Tenant To Support A Request For Reasonable Modifications?

A landlord can request that a tenant provide him/her with reliable disability-related information that: (a) is necessary to verify that the person meets the Act's definition of a "disability," (b) describes the needed modification; and (c) shows the relationship between the person's disability and the need for the requested modification.

I hope it goes without saying -- but I will say it anyway -- that a landlord must keep any requested information confidential.

Additionally, if a person's disability is open and obvious or otherwise known, and the need for the requested modification is also readily apparent or known, the landlord may not request any information from the tenant. An example of such a situation would be a tenant that has cerebral palsy who uses braces to walk, makes a request that the landlord replace the doorknobs with levers to assist the tenant with opening the doors.

The Tenant Must Pay For The Reasonable Modifications

In case you missed this very important point in the definition above, I wanted to reiterate it. The number one comment/question I receive from landlord's on the topic of reasonable modifications is "This is not fair. I can't afford to pay for these modifications. Why do I need to pay for this?" You don't have to pay for it. The law clearly states that it is the tenant's responsibility to pay for any reasonable modification that is requested.

Restoration Agreements

A landlord may condition permission for a reasonable modification -- to the inside of the property -- on the tenant entering into an agreement to restore the interior back to the condition that it was in before the modifications were made. Sec. 106.50(2r)(3), Wis. Stats.

Restoration Agreements cannot apply to the outside of the property. So a landlord cannot require a tenant to pay to uninstall a wheelchair ramp that leads to the front door, for instance.

It is improper for a landlord to require a larger security deposit from a person with a disability to cover the cost to return a unit to its original condition, but it is perfectly legal to require a tenant to place the monies to return a unit to its original condition under a restoration agreement.

A Practical Matter

I would strongly reccomend that a landlord be involved in the process of determining who is hored to make the reasonable modifications. It is the landlord's property after all and s/he needs to protect it from damage and protect the tenant from shoddy workmanship.

While it is probably not reasonable for a landlord to require a tenant to use a specified contractor to make the modifications, I would argue that it is also not reasonable for a tenant to require a landlord to allow the tenant's little brother's best friend, who is not insured or bonded, and has failed to pull the required permits, to do the work. The landlord and tenant should work together to find a contractor that is qualified and reliable and meets both the tenant's and the landlord's needs.

A Great Resource:

The U.S. Department of Justice and the U.S. Department of Housing and Urban Development have issued a Joint Statement on Reasonable Mondifications Under The Fair Housing Act. This March 2008 publication is a great resource to turn to on the topic of reasonable modifications.

Latest EPA Proposed Changes to "Renovate Right" Rules -- Deadline to Provide Feedback July 6th

ALERT! The latest EPA proposal will require dust sampling and lab testing clearance on many small jobs. The EPA estimates $160 per room in testing cost. In WI testing can only be done by state certified risk assessors and the cost is about $240 per room. So a repair to a damaged door jamb could cost ten times as much as it does today, and many times more than that if you were a do it yourselfer.

From the Federal Register (Link Below) #2 and #4 are the "gotchas."

Dust wipe testing must be performed after all renovations involving:

- Use of a heat gun at temperatures below 1,100 degrees Fahrenheit

- Removal or replacement of window or door frames

- Scraping 60 ft [2] or more of painted surfaces

- Removing more than 40 ft [2] of trim, molding, cabinets, or other fixtures.

Link to the proposed rule in the Federal Register

The 60 day comment period ends July 6th, 2010

Read the comments submitted by the Apartment Association of Southeastern WI and links to the EPA comment page at:

http://www.renovatorrules.com/

Make sure you post some feedback. This is one of the biggest changes to affect our industry and these changes are huge and will put many contractors (and landlords) out of business. Fines for violating these new laws can be as much as $32,500 per each violation.

Wisconsin's New Lead-Safe Renovation Rule is Upon Us - April 22, 2010 - Get Trained

From a March 1, 2010 post by Tim Ballering on the AASEW Advisors listserv:

Beginning April 22nd you will be required to be trained and have WI

DHFS or EPA certification even to work on your own pre 1978 rental

housing.

Yes the rule will be very expensive to comply with (See the articles

below). Yes it is another -- to put it in terms the government uses --

unfunded mandate. But it is now the law and it will eventually be

painfully expensive not to comply. (Big fines, lawsuits etc.)

The good news, if there is such a thing in this context, is the AASEW has a

tentative agreement with another state certified trainer to provide

this training for less than $200 per person.

We need a head count of how many owners and their crew members would

be interested in taking advantage of this. That number will set the

final pricing. If we hustle the training would be prior to 4/22/10 so

that no one is out of compliance.

This rule will affect you if you replace windows, disturb 6 square feet of paint on the interior or 20 square feet of paint on the exterior of any pre-1978 rental housing. Essentailly this will affect all of us that own rentals.

If you would be interested in attendng -- please post a comment below along with the number of people you would be sending and I will pass the info on to Tim.

Thanks

T

-------------Recent News on EPA Rules -----------------

http://bit.ly/bWjTs8

"The price for homeowners could be hiked by $500 to $1,000 per room,

McComas said."

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http://bit.ly/9mHQMN

"It's going to price a lot of these jobs right out of the market," he

said."I think it's going to put me out of business."

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http://bit.ly/bTXEoh

The new federal lead safety rules that take effect this spring are

coming just as work gears up on federal stimulus projects that may be

affected by the new regulations.

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http://bit.ly/a9uZnL

"You're talking about at least a few thousand dollars extra," said

DiBernardo. Gehrig estimated the extra labor might add 25 percent to

a siding job.

-----------

http://bit.ly/b8hnjr

New regulations aimed at protecting homeowners from lead based paint

could make your renovation costs skyrocket.

Upcoming AASEW Meetings, Topics & Speakers

The Apartment Association of Southeastern Wisconsin, Inc. (AASEW) has some very interesting speakers and topics for its upcoming monthly membership meetings in 2010. All meetings are held on the 3rd Monday of the month at 7 pm at the Best Western Midway Hotel which is located at 1005 S. Moorland Road in Brookfield. There is no cost to attend the meetings. If you are not yet a member of AASEW, attending one of our monthly membership meetings is a great way to see what the organization is all about and learn how membership can benefit you as a landlord, property manager or vendor.

Our January 18th meeting will feature Attorney Robert Muten of Reinhart Boerner Van Deuren S.C. Atty. Muten will speak on the issue of employees vs. independent contractors. Whether a person is an employee of your business or an independant contractor will affect all of us at some point in our lives if the issue has not already confronted you. I have done research on this very interesting topic for clients in the past and the determination as to whether you are an employee or an independant contractor is very fact-specific. You will not want to miss this very informative meeting with Atty. Muten.

Steven Antholt of the State of Wisconsin’s Department of Health Services will speak at the February 15th AASEW meeting. He will discuss the new Lead-Based Paint Renovation, Repair and Painting Program. This new program will affect everyone that owns or works on rental property and who “disturbs” more than 6 feet of interior space or 20 feet of exterior space, and/or is replacing any doors or windows in pre-1978 housing. This new law requires individuals to get specific training prior to its enactment date and to comply with a myriad of rules and regulations. The fines for ignoring this new law will be stiff --- so it would be in all of our best interests to be in attendence at this meeting.

On March 15th, Stacy Hegg, Property Manager for Wellston Apartments, will discuss best practices in rental property management and provide us with some management tips that we can use when managing our own properties. I have had the pleasure of co-presenting a seminar with Stacy a few months ago and found her to be a dynamic, knowledgeable, and enjoyable speaker. Come learn how to better manage your rentals from an expert in the industry.

I hope to see all of you at these future meetings.

I would like to wish everyone a healthy, safe, and happy holiday season. I apologize for the lack of substantive blog articles this past week but I have been very busy dealing with all of the crowds while trying to finish my last minute holiday shopping : )

NEW RULES FOR LEAD-SAFE REMODELING GO INTO EFFECT IN 2010

New rules for remodeling of houses built before 1978 go into effect in April of 2010. As of April 22, 2010 any person or business that disturbs more than 6 square feet of interior surface that may contain lead-based paint or more than 20 square feet of exterior surface that may contain lead-based paint will be subject to the EPA's 2008 Lead Renovation, Repair and Painting Rule.

In the past a person or business did not need to comply with the EPA's lead paint rules as long as they were not engaged in "abating" or "eliminating" lead based paint surfaces. That has now changed. In the near future if you are working on pre-1978 homes or child occupied business (like day care centers or schools) you will need to be registered with the EPA and take certified lead-safety training.

Certification will cost $300 and includes attending an 8 hour course. Certification must be renewed every 5 years. The required forms to become certified may be found here.

At least one person in each firm needs to be trained and certified. A firm is defined as including a sole proprietorship. On each job site there must be one certified person present to ensure that the lead-safe work practices are followed. This includes training the workers, setting up the containment system (for the lead-dust collection) and for supervising the clean up.

Following the new federal rules will also include distributing the new lead-safe remodeling pamphlet to owners and occupants and obtaining their signatures verifying that they received the pamphlet. It will also be required that the owners or occupants are notified in writing of the scope of the work, the location of the work and the expected start and end dates for the work. Records will need to be kept for at least 3 years.

Testing of the various surfaces that are to be disturbed is also required via chemical spot testing, x-ray fluoresence, and lab analysis.

The keys to abiding by the new rules will include: (1) isolating the job area, (2) managing the dust, and (3) keeping the area clean.

Is painting considered to be remodeling? This is the question on many landlords' minds. While painting isn't considered to be remodeling or renovation in itself, painting will be subject to the new regulations if the surface that you are painting will need to be disturbed in any way (such as through sanding, scraping or any other dust causing actions).

These new rules will need to be followed by anyone that is disturbing the minimum areas in pre-1978 housing -- it does not just apply to certified contractors -- if you are doing work on your own rental property, these federal laws will apply to you.

If you are interested in learning more about these new lead-safe remodeling rules please attend the Apartment Association of Southeastern Wisconsin's June membership meeting on June 15, 2009 at 7 pm. You can find additional information here.

If you would like to learn additional information on the rules you should read Eileen Franko's article here.