Disabled tenant wants larger unit at reduced price

Q: I've lived for years in a spacious studio apartment and now find it necessary to hire a live-in aide. I'd like to move to a two-bedroom, but I can't afford it. Can I expect my landlord to offer me the two-bedroom at the same rate I'm paying now, because I'm disabled? He's refusing, and he's also saying that having two people in my studio violates his occupancy policy. Do I have any legal answers to either of these positions? --Patricia U.

A: Your ability to press your case as a disabled person will depend on whether you can establish that you are disabled within the legal definition. If your doctor or other care provider will say that you are substantially limited in one or more major life activities, you'll satisfy that requirement. If it's obvious that you meet that standard, or if you can show that you receive federal assistance based on your condition, you don't even have to get that documentation.

When you ask for an accommodation, such as adding a resident to your apartment or moving to a larger unit without a rent increase, your landlord must consider it and, if it's reasonable and doesn't unduly burden his business, grant it. You'll need to show that the live-in aide is necessary in order for you to live safely -- again, this may not be too difficult, depending on your situation. But now the work begins. Your landlord's resistance may be based on a claim that your requests pose an "undue burden" on his business. Let's see how the issues might develop:

• Adding your aide to your studio. Landlords are entitled to limit the number of occupants in a rental in order to avoid overcrowding. The federal rule of thumb is to allow two persons per bedroom (some states allow more people). Unfortunately, the federal standard doesn't address studios, but that doesn't mean that the landlord can proclaim a "one person per studio" rule and necessarily get away with it. Many studios can and do safely accommodate two persons. If yours is large enough to satisfy the minimum standards in the building codes, you'll be well on your way to making your case.

• Offering a two-bedroom unit at studio rates. You're on largely uncharted legal water here. Even if you ask for a one-bedroom, you're going to be up against your landlord's claim that his business cannot reasonably sustain the loss of rent, measured as the difference between your studio rate and the rate for the larger unit. A judge would likely look at the landlord's situation and determine how significant that loss would be. For example, a big apartment firm or a wealthy owner whose rental holdings generate large profits will be better able to absorb the loss than a sole proprietor who owns and lives on a small rental property, barely making ends meet. For that landlord, the loss could be significant and "unreasonable" under the law.

Before heading into a possible confrontation with your landlord, consider getting some advice and assistance. Many fair housing and disability rights groups will speak with both of you and attempt to help you reach an acceptable solution. Your landlord certainly doesn't want a lawsuit, and neither do you.

Q: I own an apartment building that is next to a vacant lot -- well, not so vacant anymore. A construction crew, complete with earth-moving equipment, has just shown up, and I've learned that a multi-unit apartment building is about to be built. My tenants are very upset at the prospect of the noise and dirt that will surely ensue. Any suggestions on how I can deal with this? --Amber A.

A: Though your tenants may be upset about the commotion and dust, they can hardly look to you to prevent the construction. But unfortunately, even though you can't stop the project, if the disruption becomes intolerable, they may have grounds to break their leases and move. They're entitled to the "quiet enjoyment" of their rented homes, and if that peace and quiet is unacceptably violated, even if you can't prevent it, they can consider the lease to be over and move out.

For this reason alone, you need to take steps to lessen the impact of the goings-on next door. Talk with the owner and the general contractor and insist on some protections, such as a dust barrier, regular watering of the site, daily debris removal and neatening up, and restrictions on where workers will park.

Unfortunately, you've lost your bargaining chip -- had you known that the project was in the works, and had you attended planning commission hearings, you could have pointed out that these side effects would hurt your business. You could have asked the commission to issue the builder's permit on the condition that he abide by the good-neighbor practices mentioned above, which are common. At this juncture, you can request cooperation and, if desperate, threaten to sue if you lose tenants as the result of unreasonable construction practices, but the builders may not take your threat seriously. The next-door owner, however, may wisely realize that because you will be his neighbor, it's a good idea to begin relations on a positive note.

You can also work with your tenants to lessen the impact of the earth-moving and building. Consider offering tenants one or two sessions with a housekeeping service, to compensate them for dealing with the additional dirt; or offer "dinner and a movie" as a way to thank tenants for their patience. Spending a little money now is well worth avoiding vacancies later (most landlords lose two months' rent every time they go through turnover).

Q: When we signed our lease about a year ago, the property manager told us that if we wanted to install a satellite dish, we should ask permission, and they would give it. The lease expired, and we stayed on, renting month to month. We asked for permission to have a satellite dish installed and the landlord insisted that we pay an additional $500 security deposit. I went to the FCC Web site and read the "OTARD" (over-the-air-reception-device) rules, which say that installation restrictions cannot unreasonably increase the cost of installation, maintenance or use. Would an additional security deposit of $500 amount to "unreasonably increasing" the cost? We have paid a security deposit of one month's rent when we moved in, and that should cover any damage done by the installation (or removal) of the dish. --Sandi M.

A: Good for you for going to the FCC to find out for yourself whether this extra charge is permitted under the federal regulations. A little more poking around on the FCC page devoted to satellite dishes would have given you the ammunition you need to object to this charge. That page cautions landlords that restrictions on installation may be alright if done for safety or to protect a historic site (paying an additional deposit is a restriction, because you can't go ahead until you pay up). But it's up to the landlord to prove that conditions imposed for safety or preservation are necessary.

From the sounds of things, your landlord is going to have a hard time justifying the $500 additional deposit. No one is claiming that your apartment is on the list of historic buildings, so that leaves safety as a possible basis. As long as the device is mounted securely and in a place where you have a right to place it (only in your rented space), there's little reason to fear that it will fall and injure someone. Your landlord may specify how the device should be mounted (by insisting on sturdy brackets, and placed away from fire escapes), but as long as the satellite-dish provider agrees to follow reasonable guidelines, there's no basis for assuming that the dish will pose more of a threat to safety than, say, a flagpole or a clothesline.

Your landlord may respond that mounting the dish raises the possibility of property damage, not safety, because the installers will be placing a bracket on the wall that will come off when you leave. This justification won't work given the FCC rule, because only safety and historic preservation can justify a restriction on installation. Any damage that results when you remove the dish can be paid for out of your security deposit, as you acknowledge.

The FCC has dealt with restrictions like this before, and they've posted their decisions in cases where they've become involved. In the MacDonald case, they invalidated a mere $5 "application fee" as unreasonable.

This answer wouldn't be complete without a warning that you may find your landlord trying an end run. Because you're month-to-month, your landlord can change the terms and conditions of your rental agreement (including raising the deposit) with proper notice, which is 30 days in most states. If your state sets maximum deposit limits and you're already at that point, you've got nothing to fear (unless, of course, the landlord also raises the rent). But if your deposit is under the limit, or your state simply doesn't regulate deposit limits, your landlord can increase the deposit with proper notice. If that happens, and you decline to pay the increase on the grounds that it's a roundabout way to restrict your use of a satellite dish, you could find yourself facing an eviction lawsuit for failing to pay.

Before heading into an eviction lawsuit, consider enlisting the FCC's help -- you can apply to the FCC for a ruling on who's right (the information on how to ask is on the FCC Web site). If you get nowhere with the FCC, the landlord won't budge, and you find yourself about to answer to an eviction lawsuit, be very sure that the joys of limitless TV are worth the risk of losing your tenancy (hopefully, any state court judge would consult the same FCC materials mentioned above and see through the landlord's ruse).

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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