The smallest legal details make a big difference: The Low Income Housing Tax Credit and Section 504 

All of us at The Legal Center enjoy the challenge of groundbreaking cases, and we’re quite certain that many of our lawyers daydream about making arguments in front of the Supreme Court. Most of the time, though, we are happy to use some rather mundane laws and regulations on behalf of our clients—generally without ever going near a courtroom. 

We are very proud of our success in breaking new legal ground, but we always try to resolve our clients’ objectives without litigation. Eric Maxfield, coordinator of the PAIR Program (Protection and Advocacy for Individual Rights) has spent the past year exploring a way to do both.  Low-income housing tax credits and Section 504 may sound dry and dusty, but to Eric and the other lawyers on staff, even the smallest legal detail that can bring about improvements in the lives of people with disabilities holds the promise of an exciting breakthrough. 

For three decades The Legal Center has supported people with disabilities in their desire to live independently. We fight eviction notices, request reasonable accommodations from landlords, and represent clients in housing discrimination cases, least restrictive setting cases, and Medicaid Waiver Appeals.  Last year, our advocates helped 214 people retain or obtain an accessible and safe home.

How the Housing Law Applies to People with Disabilities

The Fair Housing Law distinguishes between “reasonable accommodation” (for example, providing a designated parking space to a person with a physical disability or allowing a service  animal despite a “no pets” rule) which is a responsibility of the landlord, and “reasonable modifications” (such as grab bars or roll-in showers) which are the responsibility of tenants.  For low-income people with disabilities living in privately owned housing, the expense of modification can be prohibitive. Moreover, the landlord has a limited right to require them to return the property to its original condition when they move out.

Section 504 of the 1973 Rehabilitation Act, which protects some low-income tenants who receive financial assistance with their housing, makes no distinction between accommodations and modifications—both are the responsibility of the landlord. Everyone agrees that properties owned and operated by local housing authorities fall under this law; it is less clear if the law might be considered to apply to private landlords who accept “Section 8” housing vouchers. To date, advocates for people with disabilities have not successfully pressed this issue.

One area we are exploring, with some success, is requesting accommodations and modifications in private properties developed with the benefit of the Low Income Housing Tax Credit (LIHTC).  U.S. subsidized housing stock has changed considerably since the 1980s, from government-owned to LIHTC properties, giving developers a tax credit for housing poor persons, many of whom are persons with disabilities. This type of housing is typically provided through a partnership between a nonprofit housing organization and a for-profit partner willing to finance the development because of the tax credit.

There is good authority for arguing that Section 504 applies to LIHTC properties. Eric Maxfield has made successful requests on behalf of four tenants who needed physical access improvements to their homes.  The Colorado Cross-Disability Coalition, a statewide advocacy organization for the rights of persons with disabilities, has provided a steady flow of referrals. The Legal Center hopes that referrals from other parts of Colorado will allow us to continue using this application of the housing law, and ultimately result in many more people with disabilities living in safe, secure and accessible homes. So far, no property owners have successfully challenged this interpretation of the housing law. As noted in the introduction, while we enjoy the challenge of litigation, we hope in this case that we don’t end up in court!

Note: As the newsletter went to press, Eric Maxfield accepted a position with the Colorado Attorney General’s Office.  The Legal Center wishes him continued success in his career. Andrea Faley has been appointed Coordinator of the Protection and Advocacy for Individual Rights Program.