If a resident with a disability is harassing or otherwise threatening his neighbors, then you may take action, but only after considering the ramifications of fair housing law. For example, you may have to evaluate a request made by a resident who blames his disruptive behavior on a mental disability and asks you to delay eviction proceedings to allow him to pursue treatment.
The FHA doesn’t protect an individual with a disability whose tenancy would amount to a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation, according to HUD.
That means you’ll have to determine whether the resident is a “direct threat” and whether anything can be done to resolve the matter, short of eviction. You can’t make a snap decision. The law requires an individualized assessment of the nature, duration, and severity of the risk of injury; the probability that injury will actually occur; and whether there are any reasonable accommodations that will eliminate the direct threat. And, in evaluating any recent misconduct, you’ll have to consider whether the resident has received intervening treatment or medication that has eliminated the direct threat—that is, a significant risk of substantial harm.
As an example, HUD says that a community must take certain steps before evicting a resident with a psychiatric disability who was arrested for threatening his neighbor with a baseball bat. During the eviction process, the resident’s attorney explains that the resident becomes violent when he stops taking prescribed medication, and asks the community to allow him to remain as a reasonable accommodation. HUD says the community must grant the request only if the attorney can provide satisfactory assurance that the resident will receive counseling and periodic medication monitoring to ensure he will no longer pose a direct threat. If the resident refuses, HUD says that the community may go forward with the eviction proceeding since the resident continues to pose a direct threat to the health and safety of other residents. In practice, applying these rules can be complicated, so it’s best to consult your attorney for guidance.
Example: In 2014, a Texas court ruled against a public housing resident who asked for a reasonable accommodation to avert his eviction for threatening the staff. The resident, who had been warned about increasingly alarming interactions with neighbors, left a threatening voicemail for the director. After the community initiated eviction proceedings, the resident had an outburst in the office, announcing that there would be “bullets for everyone” before storming out. The director, who knew he had a gun, felt threatened and instituted additional safety measures.
The resident’s attorney requested a reasonable accommodation to halt the eviction in favor of an action plan, explaining that the resident had schizophrenia and recently began new medication to better manage his disease. Although a mental health counselor testified that she didn’t think he was a threat, the court rejected his request for a reasonable accommodation and ordered his eviction for violating the lease provisions banning criminal activity by making “terroristic threats.”
An appeals court upheld the lower court’s decision, ruling that the resident wasn’t entitled to a reasonable accommodation, because he failed to prove that his tenancy was terminated by reason of something caused by his disability—that is, that his threats to the staff were causally linked to his disability. There was no proof that his mental disability caused him to threaten violence against the community’s staff. His tenancy wasn’t terminated because of his disability but, instead, because of his failure to abide by the terms of the lease [Heinert v. Wichita Falls Housing Authority, July 2014].
Although fair housing law considers a history of past drug addiction or alcoholism as a disability, you don’t have to excuse criminal or disruptive behavior caused by a resident’s current use of alcohol or illegal controlled substances.
