In New Jersey, it is unlawful for a landlord or housing provider to refuse to make “reasonable accommodations” in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. Oras v. Housing Authority of Bayonne, 373 N.J. Super. 302, 312 (App. Div. 2004)(quoting N.J.A.C. 13:13-3.4(f)(2)); see also N.J.S.A. 10:5-4.1; N.J.S.A. 10:5-12(g). When landlords and tenants cannot agree on how to resolve a disabled tenant’s request for an accommodation, a tenant may file a complaint with New Jersey’s Division of Civil Rights in the Office of the Attorney General (complaints may also be filed with the United States Department of Housing and Urban Development, but that is not the focus of this post). The Division of Civil Rights will then intervene on behalf of the tenant by initiating an investigation of the complaint. A landlord should respond by filing an answer and thereby avoiding default. This is but the first step in a procedure that may be resolved in a variety of ways, including by a mediated settlement or a trial before an administrative law judge.
The duty to provide a reasonable accommodation arises from New Jersey’s Law Against Discrimination. The duty "does not necessarily entail the obligation to do everything possible to accommodate such a person.” The determination of what is “reasonable” involves a “fact-sensitive evaluation” that takes into consideration costs to a landlord and benefits to the tenant, with an eye to how the requested accommodation addresses the effects of the tenant’s disability. See Estate of Nicholas v. Ocean Plaza Condo. Assoc., 388 N.J. Super. 571 (App. Div. 2006).
Initially the tenant making allegations of wrongful denial of accommodation bears the burden of showing that the requested accommodation is or was necessary to afford him or her an equal opportunity to use and enjoy the rental unit. Oras, supra, 373 N.J. Super. at 312 (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002)). If such a showing is made, the burden of proof shifts to the landlord to show that the requested accommodation is or was unreasonable.
In addition to the complaint, the Division of Civil Rights may also serve the responding landlord with a demand for information and documents. The landlord is obligated to respond to the complaint and the demand for information. The Division of Civil Rights will then proceed with the rest of its investigation.
Once the Division of Civil Rights completes its investigation, the Director of the Division of Civil Rights is required to determine whether "probable cause exists to credit the allegations of the verified complaint." N.J.A.C. 13:4-10.2. "Probable cause" means a "reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious person in the belief that the [Law Against Discrimination] has been violated." N.J.A.C. 13:4-10.2. If the dispute between landlord and tenant cannot be resolved and the Director makes a finding of probable cause, the matter is not concluded. The Director must refer the dispute to the Office of Administrative Law for a hearing before an administrative law judge.
Yes, but their existence will not necessarily eliminate the need for a hearing in the absence of a settlement. One obvious example of a viable defense is when the requested accommodation has already been made by the landlord to the tenant, which may render the filed complaint moot. A more difficult to establish defense is when the landlord claims the requested accommodation would impose an “undue hardship” upon the landlord. To establish this defense, a landlord must have a strong factual basis. The Appellate Division has explained,
Although a housing provider is not required to determine with mathematical certainty whether granting a tenant's request would cause it to suffer an undue hardship, the decision cannot be based on sheer conjecture without a substantial evidential basis. The housing provider must evaluate each request on an individual basis and not merely speculate that a suggested accommodation is not feasible based on an imagined parade of horribles.
See Estate of Nicholas v. Ocean Plaza Condo. Assoc., 388 N.J. Super. 571 (App. Div. 2006). One way to develop such a defense, and approach the possibility of a settlement, is by engaging the tenant in a dialogue to understand the extent of his/her disabilities and the problem to be addressed by the requested accommodation, and determine whether an alternative accommodation would be effective.
A case may be resolved by way of settlement or an Administrative Law Judge may rule in a landlord’s favor after a hearing and determine that the tenant’s rights were not violated. The Administrative Law Judge may rule against the landlord and find that the landlord was obligated to provide a reasonable accommodation and failed to do so. In this scenario, under New Jersey’s Law Against Discrimination, an administrative law judge may award damages, including damages for mental anguish or emotional distress, as well as penalties payable to the State and attorney’s fees.
Our firm represents landlord and property owners in a variety of different contexts. We welcome you to contact us for further information if you have a dispute with a tenant, business relation or government entity.
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