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Exercising a Reasonable Accommodation in HUD Multifamily

What do we do as affordable housing Owners/Property managers of a Section 8 property when an Applicant requests a “Reasonable Accommodation” and it turns out the applicant fabricated the need just so they could have a larger unit?  Here is a story of how an applicant of Section 8 housing  , who, when she first applied, applied for a 1BR, 1st floor unit.  Through her impatience she deceitfully, managed to connive her way to a 2 bedroom unit.  The applicant got tired of waiting around for the 1 bedroom unit to become available so she returned to the property to update her application to see what she could do to expedite her chances of getting a unit sooner.  She figured out that the 2 bedroom waiting list was much shorter and then began to concoct a story that she now needed a 2BR unit for her “medical equipment”.  She obtained a note from her Doctor stating the extra room is needed for all her medical/exercise equipment she needed.   She was eventually moved up the list and moved into a 2 bedroom as she requested (via her Reasonable Accommodation).  Upon our regularly scheduled inspections of all of the units in our building, when we got to her unit… low and behold there was no medical equipment…just a nice fully furnished extra bedroom.   The question becomes;  Can I make her move back to a 1BR since she has apparently had a miraculous recovery or can I terminate her tenancy or subsidy!

The HUD 4350.3 Handbook states:  A single person may not reside in a 2BR unit unless meeting one of the exceptions below:

3-22.G.2. However, a single person must not be permitted to occupy a unit with two or more bedrooms, except for the following persons:
a. A person with a disability who needs the larger unit as a reasonable accommodation.
b. A displaced person when no appropriately sized unit is available.
c. An elderly person who has a verifiable need for a larger unit.
d. A remaining family member of a resident family when no appropriately sized unit is available.

The Reasonable Accommodation was for a space for the medical equipment that was deemed “necessary”. There was evidently no medical equipment in the extra bedroom so there shouldn’t be any Reasonable Accommodation.  For the Owner/Agent, you need to protect yourself. I would want to first ask the tenant why there is no medical equipment before requiring her to transfer to a 1BR. She may have a relatively “reasonable” explanation such as she ordered the equipment but its arrival is delayed for whatever reason, or it is being repaired, etc.  If the tenant confirms that she will not be obtaining medical equipment, make sure she puts this in writing and then you may require her to transfer to a 1BR, unless there is some other documented disability-related need to keep the 2BR.

To avoid making matters worse, you do not want to create a situation where you require her to transfer, she refuses, you terminate her subsidy and end up in housing court (or federal/state courts for discrimination). The tenant will convey her story to the judge even if it may not be true and the judge will listen sympathetically and not require any proof from the tenant at that time and, after several adjournments, months gone by, you are not getting any rent and since HUD assisted housing is a tenant favored program the judge may usually side with the tenant and you end up with a lot of aggravation.

Due diligence is all you are required to do.  Document your conversations, read the lease and back up your decisions with the HUD Handbook, HUD notices or any other HUD guidance.  The TRACS Discussion forum is another great resource to get some feedback.  It was also the resource for this story.

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