In This Issue

• Lead-Based Paint
• Disabled Tenants

Lead-Based Paint

Lawrence F.
Feheley

The potential liability arising from lead-based paint has vexed housing authorities in recent years. Claims involving lead-based paint continue to be addressed in the courts. Two of those cases occurred in New York City.

Last August, a startling verdict was returned against the City of New York. In 1988, the City's Department of Housing Preservation and Development acquired a Brooklyn apartment building. At the time, the paint on the walls was peeling and chipping. The City renovated. However, according to the plaintiff the renovation was done improperly, leaving toxic lead in the apartment. Shortly thereafter, the plaintiff's son was born, and eighteen months later the infant had lead levels in his bloodstream that indicated lead poisoning. As a result, the plaintiff claimed, the child is hyperactive, aggressive, and mildly retarded. The City, not surprisingly, argued that the child's symptoms were not caused by exposure to lead. The jury was not convinced. The award for the plaintiff, against the City, was $11.2 million. [Jones v. City of New York, Case No. 7630192; (Sup. Ct., Kings Co.)].

In a later case, the governmental landlord fared better. In December, a federal court in New York ruled that Section 8 tenants had no cognizable claim against the New York Housing Authority based on lead-based paint. In this case, the plaintiff claimed that her son was exposed to lead-based paint while they were tenants in an apartment participating in the Section 8 program administered by the Housing Authority. The claims were based on the Housing Act, the Housing and Community Development Act, and the Lead-Based Poisoning Prevention Act ("LPPA"). The good news for the plaintiff was that the court ruled that the plaintiff had federal rights, including those under the LPPA, that she could assert. However, the court also ruled that the federal statutes and regulations do not require housing authorities to remove lead-based paint from Section 8 housing. [Roman v. Morace, 1997 WL 77844 (S.D.N.Y. 1997)].

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Disabled Tenants

State anti-discrimination statutes, and the federal Americans with Disabilities Act ("ADA"), require landlords to make reasonable accommodations to the disabled. Disability issues have become the basis for more frequent claims in the housing context.

For example, in California a tenant suffering from "panic disorder" asked permission to have a dog in her apartment, claiming that the companion would improve her condition. The landlord, however, had a no-pet policy and refused to waive it. The jury found that the landlord violated the Fair Housing Amendments Act, 42 U.S.C. §3604(f). The tenant was awarded her dog and $100,000. [Karlsrud v. Pell Revocable Trust, No. C-95-2967 (N.D. Cal. 1996)].

Most landlords believe that they can avoid discrimination claims by simply treating all applicants and tenants alike. No so with the disability laws. Those laws require that the landlord consider the individual disability of each applicant or tenant, and to make reasonable accommodations to allow the disabled to use and enjoy the housing. Under the law, the test is whether an accommodation would place an "undue burden" on the landlord.

Some accommodations, like ramps for the wheelchair-bound or permitting guide dogs for the blind, are straightforward and accepted. Others, especially involving mental disabilities, are more problematical. For example, very difficult cases arise when a tenant's behavior disturbs other residents, but the behavior is claimed to be caused by a mental disability.

Among the interesting rulings in the housing - disability area are:

• A woman suffering from degenerative arthritis requested to move to the first floor from her third floor apartment unit. The landlord refused. The court allowed the case to proceed to trial. [Roseborough v. Cottonwood Apartments, No. 94-C-3708 (N.D. Ill. 1995)].

• A tenant with multiple sclerosis was entitled to a parking space near the building, even though there was a long waiting list ahead of him. [Shapiro v. Codman Townhouses, 51 F.3d 328 (2nd Cir. 1995)]. Similarly, a man suffering from multiple sclerosis and scoliosis was entitled to a reserved parking space, even though other residents had to use wheelchairs and walkers. The landlord had refused the request because the tenant did not look disabled. [Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891 (7th Cir. 1996)].

• A tenant suffering from fibromyalgia and "anxiety" was allowed to keep a cat despite the landlord's no-pet policy. [HUD v. River Gardens, No. 09-93-1753-8 (HUD ALJ 1996)].

• A mentally disabled tenant was excused from paying her rent on time while she was hospitalized. [Anast v. Commonwealth Apartments, 956 F. Supp. 792 (N.D. Ill. 1997)].

• A landlord was prohibited from evicting a manic-depressive tenant who had threatened several neighbors, unless the landlord could prove that no reasonable accommodation would reduce the risk to the other tenants. [Roe v. Housing Authority of City of Boulder, 909 F. Supp 814 (D. Colo. 1995)].

[Sources: "Landlords and Condominiums Are Sued by Disability Residents," Susan A Bocamazo, Lawyers Weekly USA, Issue 97-19, Sept. 22, 1997; "Reasonable Accommodation in Housing for People with Disabilities," Bazelon Center for Mental Health Law (July, 1997)].

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