Appeal from the Superior Court of the District of Columbia (LT-50733-01) (Hon. Neal E. Kravitz, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Argued En Banc November 1, 2004
Before WASHINGTON, Chief Judge,*fn1 TERRY, SCHWELB, FARRELL, WAGNER,*fn2 RUIZ, REID, and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
Concurring opinion by Associate Judge FARRELL, with whom Associate Judge TERRY joins, at p 55.
Dissenting opinion by Associate Judge SCHWELB, with whom Chief Judge WASHINGTON and Associate Judge GLICKMAN join, at p 57.
Dissenting opinion by Associate Judge GLICKMAN, with whom Chief Judge WASHINGTON and Associate Judge WAGNER join, and Associate Judge SCHWELB joins in part, at p. 85.
This case presents the question under the federal Fair Housing Act whether the trial court erred in denying a tenant the opportunity to defend her landlord's action for possession by claiming discrimination -- namely, the landlord's failure to provide a "reasonable accommodation" -- based on her alleged "handicap" (mental impairment). We disagree with several of the trial court's rulings and thus reverse and remand the case to the trial court for further consideration of the tenant's request for accommodation.
It is important to note, before proceeding, that although four colleagues have either written or joined in dissenting opinions, all of them except for Judge Schwelb subscribe fundamentally to virtually all the legal principles elaborated in this opinion for the court. The difference between the majority and three of our colleagues, as expressed in Judge Glickman's dissenting opinion, lies in applying those principles to the facts.
Evelyn Douglas (tenant) receives federal Supplemental Security Income (SSI) benefits and is eligible for federally subsidized "Section 8" housing. On August 23, 2001, Kriegsfeld Corporation (landlord) served her with a thirty-day notice to "cure or quit" for violation of her lease covenant to "maintain the apartment in clean and sanitary condition." Later, at trial, the landlord presented evidence that the apartment had a foul odor emanating into the rest of the building; that the toilet was frequently filled with feces and urine; and that garbage, rotting food, and dirty laundry were strewn about. An exhibit to the tenant's earlier, unsuccessful motion for summary judgment confirmed that as a result of this situation the landlord's representative, Ms. Deborah Reid, had referred the tenant to St. Elizabeths Hospital for a psychiatric evaluation.
The tenant neither cleaned up nor vacated the premises, and the landlord accordingly filed an action for possession on November 30, 2001. Through counsel, the tenant filed a timely answer and asked for a jury trial. Her answer included a general denial, a challenge to the validity of the notice to cure or quit, a defense of discrimination under "the federal Fair Housing Act and local fair housing laws," and a counterclaim of discrimination under "the Fair Housing Act and D.C. Human Rights Act."*fn3
Soon thereafter, on February 5, 2002, counsel for the tenant sent a letter to the Director of the Department of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder," that affected the tenant's ability to keep the apartment "safe and sanitary." Counsel added: The "District of Columbia Government is prepared to assist her with cleaning the apartment." DCRA never took action.*fn4
On February 20, 2002, two weeks after his letter to DCRA, counsel for the tenant wrote counsel for the landlord "requesting a reasonable accommodation in complying with provisions of [the tenant's] lease." In this letter -- filed with the trial court as Exhibit 2 to the tenant's motion for summary judgment and discussed in counsel's supporting memorandum -- counsel explained the basis for an accommodation as follows:
Ms. Douglas suffers from a mood disorder (mental illness). She is on SSI disability. She has been assigned a case worker with the District of Columbia government and she is an outpatient at a city operated mental health/substance abuse clinic.
. . . The District of Columbia government has advised me that they are prepared to assist her with her problems because it is their opinion as well that Ms. Douglas would benefit from intervention and a reasonable accommodation.
Counsel, however, did not describe the type of accommodation sought or the assistance that the District of Columbia government would offer. According to counsel for the tenant's uncontradicted assertion in the trial court, landlord's counsel -- who has acknowledged receipt -- never responded to this letter.
Later, at a pretrial conference, the court asked for briefs on the question whether the tenant should be permitted to present her discrimination defense based on the landlord's failure to make a "reasonable accommodation" of her alleged mental disability.*fn5 Thereafter, the trial court denied the tenant's motion for summary judgment, and on the day set for trial, June 17, 2002, the court heard testimony and argument on the reasonable accommodation issue prior to selection of the jury. The trial court conducted this hearing primarily to find out whether the tenant's proffered "mental health experts" -- D.C. government employees James Sutton of the Department of Mental Health and Damon Byrd of Adult Protective Services -- were qualified to testify, and whether their testimony would support a finding that the tenant's mental illness caused her to leave the apartment in an unclean, unsanitary condition, a finding the court believed was required to support a "reasonable accommodation" defense.
After the tenant's proffered experts had testified, but before the trial court ruled, the landlord's counsel acknowledged to the court that counsel for the tenant (presumably sometime after his letter of February 20) had requested, as an accommodation, a stay of the eviction proceeding -- i.e., a stay of the action for possession -- that would permit an agency of the D.C. government to "clean up" the apartment, which the "government had promised" to do. The landlord's counsel further acknowledged: "I did not specifically talk to [tenant's counsel] about that until a couple of weeks ago," around the first of June 2002, "when I told him that his proposal simply lacked any specifics for us to really make an evaluation on." Landlord's counsel added his opinion that tenant's counsel "had no authority to speak for the D.C. government," and thus could not assure that the apartment would be cleaned or, if so, how long it would stay that way. Landlord's counsel eventually communicated his position to tenant's counsel on June 14, three days before trial: "We are willing to allow Ms. Douglas to stay in the unit through the end of August, the beginning of September, but the landlord would definitely request possession of the unit after a period of time" -- whether the apartment was clean or not. Counsel then stressed: "They [i.e., the landlord] don't see there's any way to get around or to accommodate Ms. Douglas in this matter to allow her to stay."*fn6
The court was troubled that no one at the hearing had asked the tenant's experts, who were in a position to know, exactly "what the possibilities [were] for Adult Protective Services to do cleaning of this apartment." Whereupon counsel for the tenant represented to the court that the D.C. government had a fund for paying contractors to clean apartments of needy persons (most typically the elderly, including those suffering from Alzheimer's disease) on an "ongoing" basis; that his witnesses, Sutton and Byrd, could "satisfy" the landlord that the D.C. government would "get the place cleaned up" in this case; and that if, because of the tenant's mental condition, communication with her became too difficult, he was in a position, with the help of Sutton and Byrd, to pursue a conservatorship that would be able to "take action" on her behalf with respect to the apartment. Counsel stressed, however, that the District government would not incur the cleaning expense without assurance that the tenant could remain in her apartment; the District would not restore the apartment merely for the landlord's benefit.
Accordingly, it was clear to everyone that the tenant was seeking, as a "reasonable accommodation," a stay of the eviction proceeding for a period long enough for the District government to clean the premises and thus cure the tenant's breach of the lease. Counsel also proffered both the resources and the willingness of a D.C. government agency, Adult Protective Services, to keep the premises clean. Significantly, moreover, counsel for the tenant was unequivocal in conceding that if the requested delay, coupled with government intervention, "didn't work out" -- meaning that if the apartment became filthy again (presumably because the government failed to continue its cleaning services on the tenant's behalf), the landlord would have an acknowledged remedy, eviction. According to counsel, a reasonable accommodation, once given, need not be repeated if the tenant or her government protector failed to comply with its terms.
In sum, the tenant was asking initially for a brief stay of the eviction proceeding based on (1) a proffered mental illness that allegedly had caused her to foul the premises unremittingly, (2) a proffer that the D.C. government would clean the premises and keep it clean, and (3) a concession that eviction would be warranted if the premises did not remain clean. Inherent in this request was the idea that counsel would move for an extension of the stay, and eventual dismissal of the eviction proceeding, if the apartment continued to be maintained in "clean and sanitary condition," as the lease required.
The trial court, after hearing evidence and argument, understood the tenant's request clearly, accepted that the D.C. government would not want to clean the apartment without assurance that the tenant could stay there after the cleaning, and appeared to agree that if the apartment were to remain clean, the landlord's concern about the health and safety of the other tenants would be resolved -- i.e., the lease violation would be cured:
[T]his case almost sounds to me like it's resolvable if the government could make assurances that would satisfy the plaintiff. I mean, I don't want to put the plaintiffs in an awkward position. . . . [T]hey have their right to a trial and they have waited now for several months until today's trial date as well. And I don't want to speak for them; but it sounds like they feel sorry for the defendant, too, and if they could just -- if they could be assured that this place was going to be clean and not posing a danger to other tenants that they might be willing to let this go, or at least to see what happens. . . . (Emphasis added.)
[I]f the place really got cleaned up, and there was some assurance -- some reasonable assurance that it was going to be maintained -- these people [i.e., the landlord's representatives] don't have any -- they're not out for blood. I mean, I don't think -- I don't know, the client [representative of the landlord] is nodding with me as if she agrees. (Emphasis added.)
I don't have the sense that [the representative of the landlord is] anxious to see this poor woman out on the street homeless. Everybody knows that if she gets evicted in this case, it's not going to be very easy for her to get another apartment through the Section 8 Program or otherwise. . . . I'm just trying to figure out whether there is a way to resolve this case without the need to -- without the need to move someone who might not have to be moved in order to satisfy both parties.
And there have been these statements made that the Adult Protective Services can provide the services that the landlord presumably would think were necessary, but won't, because the case is pending. But I mean, if that's the only impediment to Adult Protective Services going in there and doing the cleaning, both initially and on an ongoing basis, presumably [Adult Protective Services] could [be] disabused of the erroneous view that they shouldn't act while the case is pending. I mean, why not? (Emphasis added.) [I]f counsel for the landlord said, look, yes, the case would still be pending, we would agree to such stay for some period of time just to see how things go, but I want to tell you if the place is brought up to an acceptable condition and if you keep it there, you know, we're okay with that, why would [the District government] have a problem with that? (Emphasis added.) . . . I can understand why, hypothetically, [District government representatives] don't want to send three people in there for two days and clean it up and then have the defendant evicted the next week. But if they have every reason to believe that their work would not be for naught, I would hope that they're not so tied up in bureaucratic concerns that would make it impossible. . . . I guess in some respects we would have to speculate as to whether [the tenant] would allow these folks in to clean her apartment.
To the court's final observation the tenant's counsel replied: "[I]t might take a little bit of effort, it might not take one day, it might take a whole week or two weeks or something like that."
The trial court adjourned the hearing after announcing that it would rule the next morning on the tenant's proffered defense "if we are going to trial." There was no settlement, however. The following day, the court ruled by oral opinion that the tenant could not present a "reasonable accommodation" defense. The jury then heard an essentially defenseless case and found for the landlord (the tenant subsequently was evicted). The tenant appeals from the trial court's ruling that barred her discrimination defense and from the court's order upon the jury verdict that resulted in her eviction.*fn7
The trial court rejected the tenant's disability discrimination defense "for several reasons," each of which the court found "independently sufficient" for its ruling. First, said the court, the tenant's "request for an accommodation" -- which was "extremely vague" -- came too late, several months after the landlord had served the thirty-day notice to cure or quit and filed the lawsuit. The court acknowledged that it had "equitable authority" to grant relief to the tenant when a lease violation had not been eliminated during the thirty-day "cure period." But it would not exercise that authority here because of the tenant's "apparent refusal to allow people to come into the apartment to do any cleaning" and her resulting failure to cure the lease violation even before trial.
Second, the court opined, the premises were "a direct threat for the health and safety of others who live in the building." Thus, "almost" as a matter of law under the Fair Housing Act "no accommodation would be reasonable."
Third, for lack of qualified "expert testimony," the court found the tenant's evidence insufficient to demonstrate that she "had a mental disability," and that this disability "caused her not to maintain her apartment in a clean and sanitary condition." The trial court conceded that testimony from "a psychiatrist or a clinical psychologist" was not necessary; a qualified "social worker or mental health specialist" could suffice. But in the court's judgment, although each of the tenant's two witnesses was a mental health professional with the D.C. government, neither was qualified by "education or experience" to "render an opinion" on either the disability or the causation issue.
Before addressing the trial court's analysis, we believe it will be useful to outline the regulatory scheme that governs this case. First, the Federal Housing Act, as amended in 1988, prohibits a landlord from discriminating (among others) against a tenant in the "rental" or "terms, conditions, or privileges . . . or in the provision of services or facilities"of a dwelling because of the tenant's "handicap."*fn8 A "handicap" is defined to include a "mental impairment" and even applies to someone who is merely "regarded as having such an impairment," whether impaired or not.*fn9 "Discrimination" includes not only specified acts by a landlord that overtly deny equal treatment, but also a landlord's "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling."*fn10 In sum, actions based on a landlord's perception of mental impairment, not only on the reality of it, can give rise to actionable discrimination; and discrimination can be found even in a landlord's failure to offer a tenant assistance, not merely in affirmative acts of rejection.
The federal Fair Housing Act, however, also contains an important limitation. It does not "require that a dwelling be made available to an individual whose tenancy would constitute 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."*fn11 The Act's administrators, as well as the courts, have also ruled that an accommodation will not be reasonable, and thus will not be required, if it "would impose an undue financial and administrative burden" on the landlord or "would fundamentally alter the nature" of the landlord's operation.*fn12 (These administrative limitations are not at issue in this case.)
We turn, then, to the trial court's first ruling: that the discrimination defense is barred because (a) the tenant's request for a reasonable accommodation was "extremely vague," and (b) it came too late, presented months after the landlord had served the notice to cure or quit and filed suit. We respectfully disagree.
In the first place, the tenant's requested accommodation was a brief stay of the eviction proceeding to permit the District government to clean the apartment, as it had reportedly agreed to do, followed by extension of the stay and eventual dismissal of the action if the apartment remained clean. That request was not "extremely vague." The landlord's representative testified that he understood what was wanted, and the trial court's comments at the end of the hearing before trial revealed that the court was clear about this as well. Therefore, unless there was untoward delay in making clear what accommodation the tenant was seeking, there was no disqualifying vagueness here.
We turn, then, to timing. Under the Fair Housing Act, unlawful discrimination occurs whenever "a dwelling is 'denied' to a renter because of that renter's handicap."*fn13 Under federal case law interpreting that provision, a discriminatory denial can occur at any time during the entire period before a tenant is "actually evicted";*fn14 actionable discrimination is not limited to the shorter cure period specified in a notice to cure or quit, or to any other period short of the eviction order itself.*fn15 As a general rule, therefore, a "reasonable accommodation" defense is available at any time before a judgment of possession has been entered, if the other requirements of the defense are met.*fn16
The trial court did not apply this general rule under the Fair Housing Act that a reasonable accommodation defense will be timely until the proverbial last minute. Rather the court faulted the tenant for failure to make clear what accommodation she was seeking until shortly before trial and, further, for her failure to cure her violation by cleaning the apartment during the seven months after the cure period had expired. In this way the trial court merged its vagueness ruling into the timeliness analysis; the tenant's failure to detail the desired accommodation until months had passed after she first asked for "a reasonable accommodation" resulted in default -- the loss of a discrimination defense.
We recognize that cases involving requests for "reasonable accommodation" are "highly fact-specific, requiring case-by-case determination,"*fn17 and that circumstances occurring between the request for accommodation and the eventual trial can affect the result.*fn18 Thus, we must examine the facts in some detail. In doing so, we conclude -- as elaborated below -- that there was evidence sufficient for a jury to find that principal responsibility for any delay in pinning down the details of the tenant's request, and in working out plans for cleaning the apartment, lay with the landlord. We do not agree with the trial court's ruling that as a matter of law the tenant's request for accommodation was vague and untimely.
The tenant was under lease without incident for six months (January-July 2001). Then in July the landlord, upon observing filthy, unsanitary conditions in the tenant's apartment, gave her a notice to cure or quit (August-October 2001). After she defaulted, the landlord filed suit for possession, and the tenant -- for the first time represented by counsel -- filed her answer and counterclaim requesting a "reasonable accommodation" under the Fair Housing Act (November 2001-January 2002). At this point, all the elapsed time was attributable to the normal requirements of judicial process that landlords risk having to accept from the business they have chosen to pursue. Within a month, in February 2002, tenant's counsel wrote the landlord's counsel that accommodation was required, in particular, for "mental illness" -- a condition that the landlord's agent, Ms. Reid, had perceived at least two months earlier in December 2001, when she successfully referred the tenant to St. Elizabeths Hospital.
Under the Fair Housing Act, a landlord "is only obligated to provide a reasonable accommodation" to a tenant "if a request for the accommodation has been made."*fn19 A tenant who requests a "reasonable accommodation," moreover, should "make clear" to the landlord that "she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability."*fn20 And "she should explain what type of accommodation she is requesting."*fn21 On the other hand, the Fair Housing Act "does not require that a request be made in a particular manner."*fn22 Even more importantly, the tenant's failure to make clear in her initial request "what type of accommodation she is requesting" is not fatal. According to applicable case law, including an administrative adjudication by HUD itself, once the tenant requests a "reasonable accommodation" (or, without using those exact words, requests an accommodation for a disability) the landlord is obliged under the Fair Housing Act to respond promptly.*fn23 If the request is not sufficiently detailed to reveal the nature of that request, the Act -- as properly interpreted -- requires the landlord to "open a dialogue" with the tenant, eliciting more information as needed, to determine what specifics the tenant has in mind and whether such accommodation would, in fact, be reasonable under the circumstances.*fn24 Any delay from the landlord's failure to respond promptly to the tenant's request may become the landlord's responsibility.*fn25
The threshold question, then, is whether the letter of February 20, 2002 from tenant's counsel to landlord's counsel was specific enough to be a "request" that imposed a duty on the landlord to respond. We believe it was. In the interest of expediting the matter, counsel for the tenant should have stated the request for accommodation with greater specificity in his letter of February 20, which did not expressly mention a stay of the proceedings or spell out a plan for cleaning the apartment. That letter, however, did not lack detail. The landlord was informed that the tenant suffered from a "mood disorder," was "on SSI disability," had a D.C. government "case worker," and was an "outpatient at a city-operated mental health/substance abuse clinic." Of particular significance, counsel also told the landlord that the D.C. government was "prepared to assist" in achieving a "reasonable accommodation."
Counsel's letter did not make clear exactly what kind of accommodation the tenant was seeking or precisely how the D.C. government would help in making the accommodation reasonable. But in the context of this pending action for possession, a jury reasonably could find from the evidence of record that, as early as February 20, 2002, a request for a stay was implicit; and in the circumstances of a filthy apartment, a jury reasonably could find that, as of that same February date, the reference to the D.C. government suggested that the government would help with the cleaning.
Accordingly, we cannot say that the February 20 letter failed as a matter of law to be a "request" for a "reasonable accommodation." It supplied enough indicia of a plan to cure the lease violation, with intervention by the government and accommodation by the landlord, for a reasonable jury to find that the landlord had been obliged under the Fair Housing Act to respond promptly by "open[ing] a dialogue" with the tenant to determine whether an accommodation was feasible and would offer a reasonable possibility of curing the lease violation. From the evidence addressed at the pretrial hearing, a jury could also find that counsel for the landlord failed to engage in discussion with the tenant's counsel until approximately two weeks before trial. Such a finding would eliminate any basis for concluding as a matter of law that the tenant's request for a reasonable accommodation had been presented too late. Indeed, a jury could reason that if the landlord had promptly responded in February, as the law required, and asked for more detail, the ensuing negotiations between the parties, including the role of the D.C. government, presumably would have revealed whether accommodation was a realistic possibility, and thus might well have resolved the matter -- or at least created a record of the parties' best efforts to do so -- before the trial date arrived in June.
To support its ruling that the tenant's request for accommodation was untimely, the trial court relied on our Grubb decision*fn26 for equitable authority to deny the tenant relief. Grubb, however, was a local law decision addressing a notice to cure or quit unaffected by a Fair Housing Act defense. It has no application to the timing issue under federal law. Furthermore, Grubb itself noted that a "relevant factor in determining whether forfeiture [of a lease] should be ordered is the presence or absence of 'fair dealing' by the landlord."*fn27
(Emphasis added.) It does not appear that the trial court considered this landlord factor when it relied on Grubb to deny the tenant's discrimination defense on grounds of timing. More specifically, it does not appear that the trial court considered the possibility, reasonably inferable from the evidence, that between February 20 and early June 2002 -- a period longer than three months -- the landlord's counsel refused to respond in any way to tenant's counsel's request for a reasonable accommodation. Given the factual record to date and the applicable law, therefore, we cannot say as a matter of law that the tenant's request was untimely.
Absent a vagueness or a timing issue, therefore, the question remains: was there evidence sufficient for a jury to sustain the tenant's defense that the landlord did not respond to the tenant's request for a "reasonable accommodation"?
The court said "no" for a second reason: that this case came within the statutory exception that cancels a landlord's obligation to offer a reasonable accommodation when the tenancy constitutes "a direct threat to the health or safety of other individuals."*fn28 Contrary to the trial court's understanding, however, federal courts construing the Fair Housing Act have held -- and we agree -- that this exception does not come into play until after the trial court has evaluated the landlord's response to a requested accommodation and has determined, after a factual inquiry, that no reasonable accommodation could ameliorate the situation sufficiently to protect the health, safety, and property of others.*fn29 One federal court has succinctly stated the point this way: "accommodation of an individual's handicap must be attempted before denial of the benefits of federal legislation."*fn30 We do not believe that the court intended to suggest that the landlord must actually "attempt," i.e., carry out, a requested accommodation if patently unreasonable. Rather, as stated earlier, the landlord must attempt accommodation at least by opening a dialogue with the tenant on the requested accommodation and thus explore accommodation in good faith before saying "no." Here, however, a jury reasonably could find that the landlord never made this required effort for accommodation,*fn31 and yet the trial court held that the requested accommodation, even if explored further, could not save the situation for the tenant and others in the building. There may be situations in which no reasonable fact-finder could find that the accommodation requested was reasonable or, in any event, could protect the health, safety, or property of others.*fn32 But this is not necessarily such a case. We believe that in denying the very possibility of an effective accommodation on the facts here, the trial court ruled prematurely that the "health and safety" exception barred the tenant's defense.
We would agree that, unless the requested accommodation gave adequate assurance that the apartment would be cleaned up promptly -- and offered a reasonable prospect for its staying clean -- the health and safety exception would likely justify the tenant's eviction. In this case, however, the trial court did not give "accommodation" the required consideration. The court's emphasis on the health and safety exception, rather than on the tenant's request for accommodation, was influenced by its perception of the tenant's "apparent" refusal to allow others to help with the cleaning -- a perception enhanced, perhaps, by the fact that the tenant had been eluding counsel and had not shown up for trial.*fn33 As a result of this perception of an uncooperative tenant, the court concluded "almost" as a matter of law that accommodation would not work and thus that the "health and safety" exception precluded a reasonable accommodation defense. This hedging language of the court ("apparent," "almost") was not raised to the level of a concrete finding of fact and thus left room for further inquiry into the potential for accommodation. This is especially true because (as we shall see below) the tenant was a subject of ongoing intervention by the D.C. government's Adult Protective Services (APS), in addition to the services of an attentive lawyer. Furthermore, the court itself acknowledged that "we would have to speculate as to whether [the tenant] would allow these folks in to clean her apartment" (emphasis added) -- hardly a finding that she would not do so. Finally, at the pretrial hearing, the court did not question counsel's proffer that the District government, through APS, would be willing to clean the apartment if the landlord agreed to allow the tenant to remain there. And the court heard tenant's counsel acknowledge that eviction would be warranted if the apartment did not remain clean (through continued government intervention). Implicit in this proffer and concession was the idea that as long as the apartment remained "clean and sanitary," the tenant would be entitled to extension of the stay and eventual dismissal of the landlord's action for possession. Nonetheless, in its ruling the court concluded to a virtual certainty that no reasonable accommodation was realistically available. In doing so, the court did not come to grips with how thoroughly a tenant's request for accommodation must be explored -- first by the landlord, then by the court -- before a forfeiture order is lawful.
After failing for more than three months to respond to the tenant's request for a "reasonable accommodation," the landlord learned at least two weeks before the scheduled trial that the tenant was seeking a brief stay of the eviction proceeding to allow an agency of the D.C. government, APS, to clean the premises. And the landlord learned at the pretrial hearing, if not earlier, that the tenant would not contest eviction if the apartment, once clean, became filthy again. A reasonable jury could find that, given this knowledge, the landlord, nonetheless, did not respond. Here, then, is the point: until a landlord makes a good faith, reasonable effort at accommodation, upon request, after learning of a tenant's mental impairment, the landlord's continued pursuit of a pending action for possession is a discriminatory act under the Fair Housing Act.*fn34 In this case, however, despite the trial court's initial common-sense observation that the landlord would be completely protected if it agreed to a brief stay of the eviction proceeding while the District government cleaned the premises, the court did not connect that observation with its analysis of the "reasonable accommodation" requirement of the Fair Housing Act. More specifically, it did not recognize that before the "health and safety" exception could be invoked, the landlord had a legal duty -- upon request -- to "open a dialogue" with counsel for a mentally impaired tenant, not merely a practical responsibility to pursue a settlement for the parties' mutual benefit. Accordingly, as a consequence of its belief that the "health and safety" exception could be invoked without concrete findings on the "dialogue" issue, or even on the "tenant cooperation" issue, the court's reliance on that exception to justify the eviction was, in our view, premature and thus an error of law.
The landlord argues nonetheless that the "reasonable accommodation" defense, as formulated by the tenant, is unavailable as a matter of law for another reason, unrelated to the facts. The tenant's request, says the landlord, does not fit the traditional, legal understanding of "accommodation." Several federal courts, we are told, have said that "reasonable accommodation" means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual.*fn35 The Fair Housing Act itself, however, defines discrimination more broadly as "a refusal to make reasonable accommodations" not only in "rules" but also in "policies, practices, or services,"*fn36 language broad enough to embrace modification of a wide variety of landlord actions that surely would include a brief continuance of the eviction proceeding to solve a concrete problem -- as the case law makes clear.*fn37 Such a continuance after a tenant violates a lease covenant may not be the kind of accommodation requested -- and required -- for most handicaps. But the Fair Housing Act requires reasonable accommodation of a "mental impairment," which, unlike many handicaps, inherently reflects varied, unusual behaviors that will require unique responses -- limited, of course, to reasonable ones -- if the statutory purpose of "accommodation" is to be effectuated. Here, in any event, the tenant asks for waiver of a "generally applicable" rule/policy/practice, namely "relaxation or bending"of the rigid eviction timetable in a standard apartment lease, in order to make the cure period less onerous for the person claiming to be handicapped. In our view, the tenant's request for a brief stay of the eviction proceeding with related follow-up meets the statutory test for "reasonable accommodation" because it imposes no "fundamental alteration" in the nature of the landlord's practice or "undue financial or administrative burdens."*fn38
It is interesting to note, moreover, that the tenant's requested accommodation would be considerably less burdensome on the landlord and the other tenants than the typical accommodation recognized in the case law -- for example, allowance of pets and priority parking, contrary to the landlord's standard lease/rule/policy. Here, the tenant seeks only a carefully monitored stay of the eviction proceeding, not the typically requested "relaxation or bending" of a rule for the entire term of the tenant's lease. The tenant seeks only time to clean the apartment and show ...