Wheelchair rights tied to building's age
Rent it Right
By Janet Portman, Friday, December 11, 2009.Q: I've lived in my non-elevator building for a few years and now have mobility problems that require me to use a wheelchair. I've got a ground-level apartment, but none of the door openings are wide enough (unfortunately, I could probably get through the entryways in the upper units, but because there's no elevator I can't get there).
My building was constructed in 1995. My landlord says that he doesn't have to widen the doorways because that's an unreasonable expense. Do I have any options? --Beth F.
A: The date your building was constructed provides the answer to your question. Under the federal Fair Housing Act, buildings that were built for first occupancy after March 13, 1991, must comply with the Act's design and construction requirements.
Among them is the requirement that, in non-elevator buildings, all ground-level units must meet minimum accessibility standards. This includes doorways that are wide enough to allow a wheelchair to pass through.
When tenants request changes to a building's structure that are major and would present an unreasonable expense to the property owner, owners may refuse to make them on that basis. For example, if your building had been built in 1985 and the landlord could show that widening doorways was prohibitively expensive (a big "if"), he might be able to convince a judge that he should not be required to do the work.
The picture changes, however, if the modification the tenant requests is one that, because of the building's age, should have been done in the first place, when the structure was built. That appears to be your situation: As a 1995 structure, your non-elevator building should have been designed with accessible ground-floor units.
At least one federal court has held that, in these circumstances, an owner cannot rely on the "unreasonably expensive/disruptive" argument to get out of belatedly making the building accessible for tenants with disabilities.
Q: We rent a single-family home under a three-year lease that we signed two years ago. Our landlord refinanced the home after we moved in, and has just lost it to foreclosure. At the foreclosure sale, a man bought it and says he wants to live here, so he gave us a 90-day notice to get out. But we want to stay until the end of our lease, almost a year away. What are our options? --Laura and Steph
A: Fortunately, you do have some options. Here's why. ...CONTINUED
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Submitted by Dave Baird on December 11, 2009 - 9:01am.
I believe your answer is not necessarily correct. The correct answer is "it depends on your lease". Our (Texas Assn of REALTOR) standard leases include a subordination clause making the lease subordinate to any current or future liens the owner may place on the property.
Submitted by JOANN MARINER on December 11, 2009 - 10:12am.
Advice for Beth, the tenant who uses a wheelchair, she should file a complaint with HUD's Office of Fair Housing. For information, go to www.hud.gov or
http://portal.hud.gov/portal/page/portal/HUD/topics/housing_discriminati...
The complaint can be filed on-line or by phone.
Submitted by Freelance Writer on December 11, 2009 - 11:56am.
Janet Portman replies to Dave: Dave makes a valid point. Some leases, particularly those drafted by attorneys who work for landlords' associations or realtors, ask tenants to waive their common-law right to "first in time, first in right" protection. An even-handed subordination clause, which you'll find in most commercial leases, where lawyers for tenants have some say, provide some balance. They partner the subordination clause with a non-disturbance clause, which provides that as long as the tenant is not in breach of the lease, the new owner will not oust him. A third provision, called an "attornment" clause, completes the picture: it prevents a tenant from happily leaving a lease situation post-foreclosure when his lease is wiped-out (this comes up when the market has softened and the tenant is only too happy to get out from under an over-market lease). Most landlord-drafted leases include only the subordination clause, naturally, and a few include an attornment clause, but none include the non-disturbance clause.
Most tenants have no idea what a subordination clause means, and of them, few have the knowledge or ability to press for some balance. For this reason, these clauses are ripe to be thrown out by judges, who see them as part of a "contract of adhesion," or a contract that a consumer is presented with in a take-it-or-leave-it manner. When the subject matter of the contract concerns a basic human need, such as housing, judges are even more likely to toss them.
I'd be interested to see what a judge might do with the clause in your form lease, in light of the recent federal legislation and the public policy --to protect lease-abiding tenants from the consequences of their owners' defaults -- behind it. Judges are not above invalidating inventive clauses that attempt end-runs around federal rights -- landlords' attempts to narrow a service-members' right to cancel a lease upon deployment come to mind. Maybe a judge in Texas would view your subordination clause in a similar light.