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Salute v. Stratford Greens Garden Apartments: Landlord May Refuse to Rent to Disabled Section 8 Tenants - Not Violation of U.S. Housing Act or Fair Housing Act

This case involves two disabled individuals who receive Section 8 housing assistance from the federal government. Salute v. Stratford Greens Garden Apartments. Under the Section 8 program, the tenant pays rent of up to 30% of his income and the government contracts with the private landlord to pay the rest of the market rent. Participation in the Section 8 program is voluntary on the landlord’s part and a landlord lawfully may refuse to accept rental applications from Section 8 tenants.

In Salute, the plaintiffs wanted to live in the Stratford Greens Garden Apartments in Suffolk County, New York (the "Landlord"). The Landlord's policy is that he will not accept applications from prospective tenants who are Section 8 participants. However, on several past occasions, the Landlord agreed to accept Section 8 payments for tenants already living at the property. Because of their Section 8 participation, both of the plaintiffs were turned down for housing at Stratford Greens. They sued, claiming that the Landlord discriminated against them because of their disabilities by refusing to make "reasonable accommodations" in violation of the federal Fair Housing Act (the"FHA"). They also claimed the Landlord had violated the Section 8 "take one, take all" provision of the United States Housing Act (the "Housing Act").

Ruling for the Landlord, the district court held that there is an exception to the "take one, take all" requirement of the Housing Act, where, as here, the only Section 8 tenants are existing tenants who became Section 8 participants while already tenants. The district court also ruled in favor of the Landlord on the FHA claim. The plaintiffs appealed. Before the appeal was heard, Congress repealed the "take one, take all" provision of the Housing Act.

The U.S. Court of Appeals, Second Circuit, upheld the lower court’s decision as far as the exception to the "take one, take all" requirement, pointing out that to hold otherwise would punish landlords who, as here, chose not to evict tenants who became Section 8 participants during their tenancy. As for the plaintiffs’ claims under the FHA, the court first addressed the issue of whether Section 8 participation was a reasonable accommodation required under the FHA. Stating that "the burdens of Section 8 participation are substantial enough that participation should not be forced on landlords, either as an accommodation to handicap or otherwise," the court held that Section 8 participation constituted "unreasonable costs,’ an ‘undue hardship,’ and a ‘substantial burden,’" which are not required under the FHA’s reasonable accommodation provision.

The court then tackled the more basic question - regardless of its reasonableness, whether a landlord’s participation in the Section 8 program should be considered an "accommodation" under the FHA. Usually, in accommodation cases, the disabled person claims he requires a specific accommodation in connection with a particular disability. However, in Salute, the plaintiffs argued that their handicaps created their poor economic status and that they therefore were entitled to an accommodation (the Landlord’s participation in the Section 8 program) to remedy their financial situation. The court specifically stated that the FHA addresses "the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps." Two examples were given of situations in which a reasonable accommodation would be required (and in which it is the handicap which is accommodated): lifting a no-pets rule to permit use of a seeing-eye dog and waiving a first-come, first-served parking policy to accommodate a person with multiple sclerosis.

For those interested, Judge Calabresi disagreed with all of the majority’s points and wrote a lengthy dissent.

Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, (2d Cir. N.Y. 1998).