The Construction of Curb Cuts are an Accommodation Under the FHA and are Therefore the Landlord’s Expense
A curb cut may be considered an accommodation under the Fair Housing Act, and therefore must be paid for by the landlord. Because new construction is typically considered a modification rather than an accommodation, it seems that the creation of a curb cut would be considered a modification under the Fair Housing Act. However, in the Joint Statement of HUD and the Department of Justice, “creating curb cuts” is listed as an example of a parking accommodation. Additionally, the Fair Housing Guidance states that “as long as it wouldn’t impose an undue financial burden, a community would have to pay the costs related to . . . creating curb cuts.” Therefore, a Court would likely find that the creation of a curb cut is an accommodation that the landlord will have to pay for.
However, while the Courts recognize that “reasonable accommodations can result in the imposition of some costs on the accommodator,” they will not impose unreasonable financial burdens upon landlords to make such accommodations. Therefore, the creation of a curb cut(s) may/would impose an undue financial burden on the landlord. To determine whether a requested accommodation imposes an undue financial burden, the Court will consider “the financial resources of the provider, the cost of the reasonable accommodation, the benefits to the requester of the requested accommodation, and the availability of other, less expensive alternative accommodations that would effectively meet the applicant or resident’s disability-related needs.” Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act, 8 (May 17, 2004).
However, unless the landlord can argue that the construction of curb cuts would be an undue financial burden, the landlord will most likely have to bear the cost of creating the curb cuts because both HUD and the Department of Justice have classified curb cuts as an accommodation under the Fair Housing Act.
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Landlord Tenant Attorney