Mental Illness and Fair Housing Laws - They Don't Mix Easily
by Charles Brown

The manager of an apartment community called me recently, and our conversation went something like this:

Manager: One of our residents is acting very strangely and I'm not sure what to do about it. He sends notes to the management office complaining about other residents yelling at him all night long. He told me he was tired of my staff coming into his apartment when he was not home and destroying the faxes the FBI was sending to him before he could read them. His neighbors are complaining because he has called the police and reported that they have been harassing him when they haven't been doing anything. His neighbors are scared of him. I really believe he has "lost it".

Me: Has he threatened anyone or given you any reason to believe that he poses a danger to himself or to others?

Manager: No threats that I am aware of. No criminal history when his application was approved. He seems very paranoid. I do not know if he is dangerous. I'm a property manager, not a psychologist. Is mental illness a disability?

Me: The fair housing laws use the term "handicap" which is defined as "a physical or mental impairment which substantially limits one or more major life activities; a record of impairment; or being regarded as having such an impairment." From what you have described, he probably has a "handicap" under the law.

Manager: If he has a psychiatric disability or "handicap" and I evict him wouldn't that be a violation of the fair housing laws?

Me: It could be. Assuming he is a person with a psychiatric disability, you may not discriminate against him on that basis. If he asks, you may be required to make a reasonable accommodation in your policies because of his disability and allow him to continue living there.

Manager: But what about the neighbors he is disturbing. Don't we have an obligation to them as well?

Me: Yes. Your obligation to all of your residents is to give them peaceable possession of their apartments. Your residents have a right to live undisturbed. If a particular resident is disturbing the neighbors you should evict him.

Manager: This guy is violating our community rules and his lease by acting this way. Does the fact that he has a mental disability mean that I have to allow him to breach the lease?

Me: Generally, each resident has to comply with the lease and community policies just like everyone else.

Manager: Let me get this straight. I'm supposed to evict people who are disturbing the other residents because I owe the residents a duty of peaceable enjoyment of their property. Doesn't that conflict with the law that requires me to make reasonable accommodations to my policies for this resident so he can stay?

It took several more long conversations for us to resolve that situation. Sometimes the laws do conflict and there is no easy answer to these questions. A landlord has an obligation to make reasonable accommodations for people with disabilities. But, Landlords also have the duty to the other residents of the community to evict people who are being disruptive. The answers and solutions to these situations differ on a case-by-case basis.

Landlords should grant a reasonable request from a disabled tenant for an accommodation if the accommodation does not involve a great deal of money or logistical problems on the landlord's part. If asked, a landlord may have to make an adjustment to their community policies, rules or lease to accommodate a resident's disability. For example, if counseling or medication would help eliminate this behavior, you may want to allow the resident time to seek counseling or get back on medication before making the decision of whether or not to evict him. The accommodation does not cost anything and will not create any logistical problems on your part.

Landlords may evict a resident because of conduct which is a breach of their lease unless the violation was due to the person's disability and the person requested a reasonable accommodation which would prevent the conduct or breach from happening again. The lease violation has to be related to the disability before accommodation becomes an issue, otherwise, it is just like any other lease violation and you may evict the resident.

If you have a resident who begins exhibiting mental illness, check your TAA Rental Application for Residents and Occupants. Contact the people listed as emergency contacts on the Application. Ask for their help. I have had cases where the family of the resident exhibiting strange behavior intervened after they were notified and helped solve the problem. If no person is listed on the Rental Application as an emergency contact, contact the county Mental Health/Mental Retardation (MHMR) office and ask for their advice and assistance.

Technically, if the disabled resident does not request an accommodation, you have no obligation to offer one. However, many people who become mentally disabled no longer have the ability to know what accommodation would be practical in their situation. While the law does not require you to offer an accommodation without being asked, you might wish to offer an accommodation as an alternative to an eviction.

If the resident's mental problems are so severe that they pose a danger to other persons or themselves and you are unable to solve the problems with reasonable accommodations, consult an attorney and seek a termination of the lease or eviction.


Charles Brown
Charles Brown is an attorney who invests in real estate in the Austin, Texas area. He is Board Certified in Residential and Commercial Real Estate Law by the Texas Board of Legal Specialization. He can be reached at 512-476-8942.


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