Can some extreme actions by a resident be deemed a "direct threat," thereby exempting property management from being required to make reasonable accommodation to the resident?

Direct Threat Defined

The Fair Housing Act does not require that housing providers rent to anyone who would be a "direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." In many cases, determining that someone poses a "direct threat" to people or property is not difficult. For example, a person who has a history of violence against other people, or a person who has been convicted of arson would certainly fall into this category, and could legitimately be denied housing. However, in other circumstances, it is not so clear whether a person poses a "direct threat." And if the concern is somehow related to a person's disability, the question becomes even more complicated.

For instance, you receive an application from a person known to have a mental illness. (Of course, since you are not permitted to ask about the nature or severity of any disability, you did not ask about the mental illness. Let's assume the applicant's last known residence is a psychiatric hospital, and this is all the information you have about his disability.) You may have legitimate concerns about possible dangers associated with renting to this person, including threats to people or property. However, without any objective evidence that a person would, in fact, pose a threat, you cannot refuse to rent to him solely because of his mental illness.

Determining whether a person constitutes a direct threat usually requires that someone prove himself to be a threat; you cannot in most circumstances assume he will be a threat. In addition, conduct that may be annoying or inappropriate may not be considered "threatening." A recent case from Illinois illustrated this situation:

A Direct Threat Example?

A couple lived in an apartment with their adult son, who was mentally disabled. Over the course of their residency, the son asked another resident he did not know for the money "she owed him;" shouted death threats to another resident; harassed building employees; made a threatening telephone call to an employee; exposed himself and urinated in the elevator; brandished knives; and threw a drink can at an employee. When the housing provider evicted the residents for unpaid rent, the residents' claimed they had been evicted because of their son's disability. A court found that not all of the reported behavior would support a "direct threat," but that the conduct in the elevator, brandishing knives, and throwing a can at an employee would. The court emphasized that the decision that the son constituted a direct threat had to be based on objective evidence, and not on the subjective fears or apprehensions of either the housing provider or other residents.

Some Practical Suggestions

Like many other complicated fair housing issues, determining whether a person constitutes a "direct threat" may put a housing provider in a difficult position, particularly when that decision involves a person with a disability. Here are some suggestions:

• Be sure to document each instance when the actions of a resident result in a complaint by another resident or employee.
• Make sure any decision you make is based on documented evidence, not your assumptions about how people behave. People with disabilities are still required to comply with their leases; if a person's conduct constitutes a lease violation, treat it as you would any other lease violation.
• You must make reasonable accommodations for people with disabilities, but it is not a reasonable accommodation for a person to be allowed to be a threat to people or property.
• Adopt and consistently follow a resident selection policy that includes an evaluation of criminal history, and make future criminal conduct grounds for lease termination. Criminal convictions are never protected under the Fair Housing Act.

Fair Housing is a way to be, not just a thing to do.  Be consistent.  Follow the law.  Train your people regularly on fair housing and include scenario training.  It is part of your corporate social responsibility.