DOES THE FAIR HOUSING ACT ALLOW EARLY TERMINATION OF A LEASE WITHOUT HAVING TO PAY A FEE? 

By: Michael Manset, Staff Attorney

Consider this:  

A tenant is renting an apartment or a house for a year. After six months, the tenant develops a disability that prevents them from safely residing in the apartment. The disability may be a worsening mobility impairment that prevents the tenant from safely using the stairs inside or outside the home. Or the disability may be a psychiatric or cognitive impairment that requires the tenant to move in with relatives or into a care facility.

The tenant asks the landlord to break the lease 6-months early without paying a fee. The landlord directs the tenant to the part of the lease that allows a tenant to terminate the lease early but requires the tenant to pay the rest of the rent due under the lease. The lease does not mention being allowed to break the lease early without a fee based on the federal Fair Housing Act (FHA).

Here is how the Fair Housing Act may allow a tenant to terminate a lease early without having to pay a penalty or fee: 

The Fair Housing Act, as amended by Congress in 1988 makes it unlawful to discriminate in the rental of housing, or in the terms, conditions or privileges of housing, because of a disability. A disability is a physical or mental impairment that substantially limits a major life activity, such as walking, seeing, hearing, speaking, learning, working, or caring for oneself.

Discrimination under the Fair Housing Act includes refusing to make reasonable accommodations in rules, polices, practices, or services, when such accommodations may be necessary to afford such a person equal opportunity to use and enjoy housing. Courts have found:

• The manner in which a rental agreement can be terminated constitutes a term, condition, or privilege of the rental agreement itself. Samuelson v. Mid-Atlantic Realty Co., 947 F. Supp. 756, 761 (D. Del. 1996).

• Allowing a tenant to terminate their lease early without charging fees due to disability is a common reasonable accommodation. See, e.g., id. at 761; Hughes v. Bransfield, 84 Va. Cir. 214 (Cir. Ct. 2012).

The U.S. Department of Housing and Urban Development has issued numerous guidance documents regarding reasonable accommodations under the Fair Housing Act, including setting out a process for housing providers when considering a reasonable accommodation request. See HUD, Information for Housing Providers, Landlords, and Property Managers, What Happens Once You Receive a Request for a Reasonable Accommodation or Reasonable Modification (hereinafter “HUD Information to Housing Providers”) (last visited October 7, 2024). Under this guidance, HUD provides:

• “Only if housing providers, landlords, and property managers believe they cannot provide what an individual has asked for because it would be an undue administrative and financial burden or a fundamental alteration to their program, can [they] suggest alternative accommodations.” Id. (emphases added).

• Landlords “are required to talk with the requestor about the different options if [they] cannot provide the specific accommodation requested, this is called the ‘interactive process.’” Id.

• “Individuals with disabilities are not required to accept an alternative if it will not work for them, and individuals with disabilities are in the best position to know what will and will not meet their specific disability-related needs.” Id.

In addition, the Joint Statement from HUD and the United States Department of Justice (“DOJ”) on Reasonable Accommodations (“Joint Statement on Reasonable Accommodations”) also makes clear that:

• “a reasonable accommodation may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden or it would fundamentally alter the nature of the provider’s operations.”  Id. at 7.

• “Housing providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation.” Id. at 9.

Reasonable accommodations are determined case by case basis. Even so, courts and HUD have recognized circumstances where a person with a disability has a right under the Fair Housing Act to terminate a lease early without fee or penalty.

By requiring the payment of a fee, the landlord may be committing housing discrimination and therefore may open themselves up to liability under the Fair Housing Act.