Q: We’re landlords with a somewhat off-beat question. My mother is about to enter a continuing-care residential community, which requires her to be able to "live independently." She is independent now, and will have no problems taking care of herself in her apartment, but she has a medical condition that will eventually require her to hire a personal assistant to help with dressing, eating and bathing.

Q: We’re landlords with a somewhat off-beat question. My mother is about to enter a continuing-care residential community, which requires her to be able to "live independently." She is independent now, and will have no problems taking care of herself in her apartment, but she has a medical condition that will eventually require her to hire a personal assistant to help with dressing, eating and bathing. I know from my own business that if I had a disabled tenant who needed a live-in personal assistant, I’d have to let that helper live with my tenant unless it resulted in unsafe overcrowding. But in my mother’s case, the center is telling her that if she becomes disabled, she’ll have to leave her apartment and move into their assisted-living quarters. Why wouldn’t the center be required to make the same accommodation that I have to make? Aren’t seniors’ housing properties subject to the same fair-housing rules as I am? –Rex and Nicole D.

A: Your question may seem off-beat to you, but it’s timely for very many Americans. The numbers of baby boomers (people born between 1946 and 1964) are growing steadily — in 2000, people 65 and older comprised 12.4 percent of the population; by 2010, they will make up 13.2 percent; by 2020 the figure will hit 16.5 percent; and by 2030 it will rise to 20 percent. The housing rights of these elders will be vitally important to them and their families.

The number of continuing-care retirement communities is growing with the aging population. These communities typically offer levels of care, from independent living like the setup your mother is contemplating (which can look and operate just like a regular apartment), to assisted living (usually smaller units with group dining), and skilled nursing accommodations (smaller units with attached bathrooms). The communities are attractive because they offer recreation and social activities, as well as progressive access to medical care. When people apply for admission, the centers evaluate their financial and medical status, and therein lies the ubiquitous requirement that, at least initially, a person be able to live independently — that is, without assistance. Typically, the contracts provide that when the resident can no longer live independently, he or she must move to the next level. You’re asking whether a resident who doesn’t want to move to assisted living — but instead would like to keep her apartment and bring in help — can insist on staying and invoke the fair-housing laws as she could if she lived in a regular apartment complex.

When most of us think of the federal fair-housing laws, we think of apartments and single-family rentals. But the Fair Housing Act (and the subsequent Fair Housing Amendments Act, which added protections for people with disabilities) applies to any accommodation in which the occupant intends to stay for more than a brief period. Even so, courts have held that a variety of temporary living situations come within the law, such as migrant worker camps, long-term rooming and boarding homes, children’s homes, summer bungalows, and homeless shelters. Measured against this standard, your mother’s community clearly comes within the scope of the fair-housing laws.

As you suspect, the question for the community is the same one you face as a regular landlord: When a tenant or prospect asks you to vary your policies or rules to accommodate a disability, you must do so unless it would pose an unreasonable burden to your business. So the question becomes — would having a personal assistant in your mother’s apartment constitute an undue burden for the community? The facility may advance any one of several arguments.

Let’s look at the first likely reply — that having a live-in aide will unduly burden the ability of the community to run its business. As long as your mother will be finding and paying for her aide, and your mother’s unit can safely accommodate two people (there’s no overcrowding problem), it’s hard to see how this argument will fly. The community may advance another reason, tied to its business model and bottom line: It wants to move people like your mother into the next level of care so that it can keep these units occupied and rent the apartment just vacated to someone new. Economic impact can certainly constitute an undue burden; it’s hard to tell how a judge would rule on this type of argument.

Another argument you may encounter poses even more difficult issues. Your state’s licensing laws for continuing-care facilities may set minimum staffing levels based on the ambulatory abilities of the residents, and may forbid housing residents who need assistance that the facility is not licensed to offer. The idea is to make sure either that residents are sufficiently ambulatory that they can escape an emergency on their own, or that the facility has adequate staff to help them. Given such laws, continuing-care facilities have defended their right to ask about residents’ impairments and to insist that residents be able to live independently for the staff-less housing they want.

Courts have generally not ruled in favor of the continuing-care facilities on this score, and have struck down such laws as calling for discrimination under fair-housing laws (in one case, the legislature stepped in and changed the law). This is a hard call — after all, regulating assisted-living facilities is driven by a desire to avoid the same types of abuses that have historically plagued nursing homes. Although minimum standards are necessary, this doesn’t mean that a continuing-care facility can categorically refuse a disabled tenant’s accommodation request that would, if granted, give that resident the protection that the standards were designed to ensure.

At least one state has thought carefully about the problem of involuntary transfers and has reached a sensible decision. Since 1964 in Maine, a resident must agree in writing to be transferred to a care unit or a bed within the skilled nursing facility unless the center, after consultation with staff, doctors, therapists, the resident’s family and any other representative, concludes either that the resident poses a health or safety danger to other residents, or that a change in the resident’s health status or abilities requires a move to a higher level of care. To keep everyone honest, a written decision to transfer or change a resident’s accommodations must describe why the resident’s healthcare needs can’t be met at the resident’s present location, and residents may appeal any determination to the state’s Department of Health and Human Services. (Me. Rev. Stat. Ann. tit. 24-A § 6228)

Signing your mother up for a continuing-care facility that has "independent living" as a firm requirement for its apartments may pose a bit of a risk. Because this is such a serious decision, you may want to seek the advice of an experienced elder law attorney, who may know (or will find out) how courts in your state have dealt with this issue. If it hasn’t been resolved, you may be in for a fight.

Q: I would appreciate it if you would be kind enough to provide the exact definition of an apartment manager and what their duties entail. –Liz B.

A: Unlike some terms we encounter in everyday living, such as "employee" or even "tenant," the term "apartment manager" has no legal definition (you won’t find it defined in a law or a court case). Instead, it’s a term that the residential rental industry — owners and management companies — define for themselves. Trade organizations such as the Institute of Real Estate Management have their own understandings of the term, but when it comes down to it, the term can mean whatever the owner decides he wants it to mean. The essential thing in any rental situation, for the owner, the manager, and the tenants, is for everyone to be clear on what that job includes (and doesn’t include).

It’s common for a manager to live on the premises, but she doesn’t have to (although some states, such as California, require on-site managers when the multitenant building is a certain size). Managers typically handle day-to-day issues, such as collecting rent, handling repair requests, supervising employees, and showing rentals to prospects. Some managers negotiate and sign leases, but again, state law may require that these tasks be done only by an owner or a licensed real estate broker. The owner can also designate the manager to accept legal notices and papers (this makes the manager the "designated agent for service of process.")

If you think "manager" is a loose concept, the same goes for "landlord," which is sometimes legally defined, but not always. In some states, "landlord" and "owner" (the person or legal entity on the property deed) are synonymous, but in others, it’s not clear. The landlord may be the same as the on-site manager, for example. It’s even possible to have all three: Imagine a partnership (the owner) that owns an apartment building in a different state, and hires a management company to run the business (the landlord, who accepts legal notices and demands), which then hires a property manager to live on-site and handle daily issues.

Some property owners take advantage of all of this vagueness by pretending to be only managers, in order to deflect tenant questions and complaints. "Sorry, I’m just the manager, it’s up to the landlord" is a response often heard when tenants want to get something done and the person they’re dealing with (who is really both owner and manager) claims to have no authority. Forward-looking states prevent this kind of nonsense by requiring the lease or rental agreement to list a person, whether owner, landlord or manager, to handle those issues. In these states, no matter what the person calls himself, he’s responsible for handling tenant questions and complaints.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.


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