Home Table of Contents

§ 12181. Other Requirements or Limitations in the Provision of Reasonable Modifications; and Ex...

2 CA ADC § 12181BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Barclays Official California Code of Regulations Currentness
Title 2. Administration
Division 4.1. Department of Fair Employment and Housing
Chapter 5. Fair Employment and Housing Council
Subchapter 7. Discrimination in Housing
Article 18. Disability
2 CCR § 12181
§ 12181. Other Requirements or Limitations in the Provision of Reasonable Modifications; and Examples.
(a) In the case of a rental, the owner or owner representative may, only where it is reasonable to do so, condition permission for a reasonable modification on the tenant or applicant agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. The owner cannot require restoration of exterior modifications or modifications to public use areas or common areas;
(b) In the case of a rental where there is an agreement for restoration, the owner or owner representative may not increase for individuals with disabilities any customarily required security deposit, nor can they automatically require that the tenant or applicant pay into an interest-bearing escrow account to pay for restorations. However, where it is necessary to ensure that funds will be available to pay for restorations at the end of the tenancy, the owner or owner representative may negotiate as part of such a restoration agreement a provision requiring that the tenant or applicant pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the applicant or tenant. Owners may not require the full amount of the cost of restorations to be paid prior to permitting the modifications. Whether payment into an escrow account is necessary to ensure that funds will be available for restoration is a case-by-case factual determination. The following factors shall be considered in determining whether payment into an escrow account is necessary, the amount of any payments, and what the schedule and terms for such payments will be:
(1) The nature and extent of the proposed modifications;
(2) The expected duration of the lease;
(3) The credit and tenant history of the tenant or applicant;
(4) The amount of any existing security deposit;
(5) The impact of non-restoration on the future usability of the premises; and
(6) Other information that has bearing on the risk to the owner.
(c) An owner or owner representative may condition permission for a modification on the applicant or tenant providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be done in a competent manner and that any required building permits will be obtained. The reasonableness of a description of the proposed modification or of assurances that the work will be done in a competent manner is a case-by-case factual determination and will vary based on the location and nature of the proposed modifications. For example, it is reasonable to accept an informal, oral description of a modification in the form of installing a grab bar or lowering closet shelves. Depending on the facts, the installation of a large exterior ramp may require more detailed descriptions and assurances. Owners shall not require that modifications be accomplished by a particular contractor or builder. Modifications may be accomplished by any party reasonably able to complete the work in a competent manner. It is unlawful for owners to deny a particular type of modification unless it is an undue financial and administrative burden or a fundamental alteration.
(d) The prohibitions and requirements of this section apply to common interest developments, except that owners (members of the common interest development) may:
(1) Pursuant to Civil Code section 4760, as of right, make any improvement or alteration within the boundaries of the member's separate interest that does not impair the structural integrity or mechanical systems or lessen the support of any portions of the common interest development.
(2) Modify the member's separate interest, at the member's expense, to facilitate access for people with disabilities or to alter conditions which could be hazardous to people with disabilities in accordance with the Davis-Stirling Common Interest Development Act. However, to the extent the Davis-Stirling Common Interest Development Act, including Civil Code section 4760, or the common interest development's governing documents require or permit any action that would be an unlawful practice under this section, it is rendered invalid by the Fair Employment and Housing Act.
(3) Modify public and common use areas at the member's expense, including modifications of the route from the public way to the door of the separate interest, subject to a request for reasonable modifications under this Article. To the extent the Davis-Stirling Common Interest Development Act, including Civil Code section 4760, or the common interest development's governing documents require or permit any action in regard to such modifications that would be an unlawful practice under this section, it is rendered invalid by the Fair Employment and Housing Act.
(e) No restoration of either the member's separate interest or the public and common areas shall be required in common interest developments, since the obligation to restore the premises at the end of the residency is limited to the interiors of tenancies.
(f) Owners may not impose other conditions on modifications, such as liability waivers or insurance requirements.
(g) This Article applies to all housing accommodations regardless of the age of the buildings. The obligation to make reasonable modifications is independent of, and not an alternative to, compliance with federal and state architectural accessibility requirements for housing accommodations, and the obligation to maintain accessible features.
(h) In some instances, owners may also be subject to contractual obligations, or federal or state laws or regulations that require the owner to install and pay for the reasonable modifications, such as when the owner is a government entity, or the recipient of federal or state funding for affordable housing, or part of a government entity's program or activities to provide housing. In those instances, requests for reasonable modifications shall be handled as requests for a reasonable accommodation. For example:
(1) Example of circumstances where reasonable modification required to be paid for by subsidized housing owner : Santiago uses a wheelchair and lives in federally subsidized housing. He needs a roll-in shower in order to bathe independently, and requests an alteration to his shower. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 1218l(h). Under regulations implementing Section 504, structural changes needed by an applicant or resident with a disability in housing receiving federal financial assistance are considered reasonable accommodations. They must be paid for by the housing provider unless providing them would be an undue financial and administrative burden or a fundamental alteration of the program. Modifying a shower in an apartment would not be a fundamental alteration. Therefore. the owner of Santiago's building is obligated to pay for and install the roll-in shower unless doing so is an undue financial and administrative burden.
(2) Example of circumstances where a reasonable modification is required to be paid for by tenant: Ariz uses a wheelchair and lives in privately owned housing. He needs a roll-in shower in order to bathe independently, and requests a reasonable modification to his shower. The owner must consider the request under these regulations sections 12176 through 12181, and specifically including subsection 12180(b). If the request is granted, Ariz is responsible for the costs of installing the roll-in shower as a reasonable modification to his unit.
(i) Tenants are responsible for upkeep and maintenance of a modification that is used exclusively by the tenant household. If a modification is made to a common area that is normally maintained by the owner, then the owner is responsible for the upkeep and maintenance of the modification. If a modification is made to a common area that is not normally maintained by the owner, then the housing provider is not responsible for maintaining the modification. For example:
(1) Example of circumstances where maintenance of a reasonable modification is required to be paid for by owner: Because of a mobility disability, Bashir requests and receives a reasonable modification and installs a ramp in the lobby of a multifamily building at his own expense. The ramp is used by other tenants and the public as well as the tenant with the disability. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(i). The owner of the property is responsible for maintaining the ramp.
(2) Example of factors regarding whether maintenance of a reasonable modification is required to be paid for by owner or tenant: Jade leases a detached, single-family home. Because of a mobility disability, Jade requests and receives a reasonable modification and installs a ramp at the outside entrance to the home. The owner provides no snow removal services, and the lease agreement specifically states that snow removal is the responsibility of the individual tenant. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(i). Under these circumstances, the owner has no duty to remove snow on the tenant's ramp. However, if the owner normally provides snow removal for the outside of the building and the common areas, the owner is responsible for removing the snow from the ramp as well.
(j) The owner cannot require that a tenant move to a different unit in lieu of allowing the tenant to make a modification that complies with the requirements for reasonable modifications.
(k) In general, if a tenant requests a modification that is reasonable, the owner cannot insist on an alternative modification or an alternative design if the tenant complies with the requirements for reasonable modifications. However, if the modification is to a common area, or to an aspect of the interior of the unit that would not have to be restored because it would not be reasonable to do so, and if the owner's alternative proposed design imposes no additional costs and still meets the tenant's needs, then the modification should be done in accordance with the owner's design. For example:
(1) Example of circumstance where owner proposes altered design for modification, where owner would be responsible for increase cost of altered design: As a result of a mobility disability, Keiko requests that she be permitted, at her expense, to install a ramp so that she can access her apartment using her motorized wheelchair. The existing entrance to her dwelling is not wheelchair accessible because the route to the front door requires going up a step. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(k). The owner proposes a design for a ramp that differs from Keiko's proposal, but the alternative design costs more and does not meet Keiko's needs. Keiko is not obligated to accept the alternative modification. If her request to modify her unit is reasonable, it must be approved.
(2) Example of circumstance where owner proposes altered design for modification, where tenant would be responsible for including altered design: As a result of a mobility disability, Azul requests a modification to widen a doorway to allow passage with their wheelchair. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(k). The owner grants the modification. All of the doorways in the unit are trimmed with a decorative trim molding that does not cost any more than the standard trim molding, so the owner requests that Azul use the decorative trim molding. Because there is no extra cost, and because in usual circumstances it would not be reasonable to require that the doorway be restored at the end of the tenancy, Azul must include the decorative trim when they widen the doorway.
(l) If the owner wishes a modification to be made with more costly materials or with a more costly design, in order to satisfy the owner's aesthetic standards, the tenant must agree only if the owner pays those additional costs. In addition, if the owner requires more costly materials or a more costly design be used to satisfy her workmanship preferences beyond the requirements of the applicable local codes, the tenant must agree only if the owner pays for those additional costs as well. In such a case, however, the owner's design must still meet the tenant's needs. If the owner does not wish to pay the additional costs, the modification must be granted without the more expensive materials or design if it otherwise meets the requirements for a reasonable modification.
(m) When an individual is purchasing a housing accommodation that has not yet been built, a purchaser can request a reasonable modification for the not-yet constructed housing accommodation. Pursuant to Health & Safety Code section 17959.6, developers of for-sale residential housing developments shall provide buyers a list of universal accessibility features prior to construction. If a purchaser with a disability needs any of these accessibility features or different or additional features to make a new unit that is not yet built meet her disability-related needs, and the features are different than those required by building codes and applicable accessibility laws, the purchaser may request additional or alternative features pursuant to Health & Safety Code section 17959.6. In addition, the developer must consider the request as one for reasonable modification under these regulations, including engaging in the interactive process under section 12177, as needed. If the purchaser decides to include the features, then the purchaser is responsible for the additional costs associated with the structural changes over and above what the original design would have cost. For example:
(1) Example of factors for determining who should pay for altered features in a not-yet constructed home: Elian has a mobility disability and is purchasing a detached dwelling that is not yet built, and asks for a bathroom sink with a floorless base cabinet with retractable doors that allows the buyer to position his wheelchair under the sink. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(m). If the cabinet costs more than the standard vanity cabinet provided by the builder, Elian is responsible for the additional cost, not the full cost of the requested cabinet. If, however, the alternative cabinet requested by Elian costs less than or the same as the one normally provided by the builder, and the installation costs are also the same or less, then the builder should install the requested cabinet without any additional cost to Elian.
(2) Example of circumstances where seller should pay for altered features in a not-yet constructed home: Mariana has a mobility disability and is purchasing a ground floor unit in a detached townhouse that is designed with a concrete step at the front door. She requests that the builder grade the entrance to eliminate the need for the step. The builder must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(m). If the cost of providing the at-grade entrance is no greater than the cost of building the concrete step, then the builder would have to provide the at-grade entrance without additional charge to Mariana.
(3) Example of circumstances where buyer should pay for altered features in a not-yet constructed home: Natalia has a mobility disability and is purchasing a condominium unit that is subject to accessibility design and construction standards. She wishes to have grab bars installed in the unit as a reasonable modification to the bathroom. The builder must consider the request under these regulations, including sections 12176 through 12181, and specifically including subsection 12181(m). The builder is responsible for installing and paying for the wall reinforcements for the grab bars because these reinforcements are required under the applicable accessible standards. Natalia is responsible for the costs of installing and paying for the grab bars.
(n) Examples of Reasonable Modification:
(1) Example of factors to be considered in responding to a request for reasonable modifications, including consideration of whether restoration of modifications is a reasonable requirement and whether an escrow account could be requested: Juanita uses a wheelchair for her disability. She requests permission to make reasonable modifications to the interior and exterior of the apartment she is about to move into, at her own expense. The modifications include installing grab bars in the bathroom and lowering the counters in the kitchen. The owner must consider the request under these regulations, including sections 12176 through 12181. It is necessary to reinforce the bathroom walls with blocking to affix the grab bars. It is unlawful for the owner to refuse to permit Juanita, at her own expense, from making the modifications. However, the owner may condition permission for the modification on Juanita agreeing to remove the grab bars and restoring the counters to the condition that existed before the modification, reasonable wear and tear excepted. The owner may also reasonably require that the wall to which the grab bars are to be attached be repaired and restored to its original condition, reasonable wear and tear excepted. However, it would be unreasonable for the owner to require Juanita to remove the blocking in the walls for the grab bars, since the reinforced walls will not interfere in any way with the owner's or the next tenant's use and enjoyment of the premises and may be needed by some future tenant. Juanita has just signed a one-year lease and has paid a security deposit equivalent to one month's rent. It would not normally be reasonable for the owner to require payment into an interest-bearing escrow account to ensure restoration of the grab bars, given the ease of removal, relative cost, and existence of a security deposit. However, it may be reasonable for the owner to negotiate with Juanita for a payment into an interest-bearing escrow account to ensure restoration of the counters to their former height, taking into account the factors in subsection (b) above, and allowing payments over time that do not exceed the costs of the restoration. The owner can require that Juanita provide reasonable assurances that the work will be done in a competent manner and that any required building permits will be obtained.
(2) Example of situation where restoration of reasonable modifications would not be required: Kahlil has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass, and the door to the complex's media room has a step up into it. Kahlil asks the owner for permission to widen the doorway to his unit and add a ramp to the complex's media room door, at his own expense. The owner must consider the request under these regulations, including sections 12176 through 12181. It is unlawful for the owner to refuse to permit Kahlil to make the modifications. Further, the owner may not condition permission for the modification on Kahlil paying for the doorway to be narrowed at the end of the lease because a wider doorway will not interfere with the owner's or the next tenant's use and enjoyment of the premises. The owner also may not condition the approval of the modifications on removal of the ramp, because restorations can only be required for interiors. The owner can require that Kahlil provide reasonable assurances that the work will be done in a competent manner and that any required building permits will be obtained.
(3) Example of factors to be considered in responding to a request for a reasonable modification in a common interest development: Aki owns a condominium unit. Aki is deaf and would like to install a blinking doorbell to their apartment. This requires modifications to the front doorbell to the condominium complex and to the doorbell in Aki's unit. Aki has arranged for a community organization to pay for the modifications. Aki asks the homeowners' association permission to make the modifications. The home owners' association must consider the request under these regulations, including sections 12176 through 12181. It is unlawful for the owners' association to refuse to permit Aki to make the modifications, regardless of any provisions in the common interest development's governing documents. The source of the funding for the modifications is irrelevant. Further, the homeowner's association may not condition the approval of the modifications by requiring restoration of the former doorbells when Aki sells the condominium unit, because restorations can only be required for interior rental unit modifications. The owners' association can require that Aki provide reasonable assurances that the work will be done in a competent manner and that any required building permits will be obtained.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1, 12927, 12948, 12955, 12955.3, 12955.6 and 12955.8, Government Code.
HISTORY
1. New section filed 11-19-2021; operative 1-1-2022 (Register 2021, No. 47).
This database is current through 4/22/22 Register 2022, No. 16
2 CCR § 12181, 2 CA ADC § 12181
End of Document