A resident asks for grab bars in the bathroom.

Under the Fair Housing Act, if the request is a reasonable accommodation, the housing provider generally bears the cost. If it is a reasonable modification, the resident generally does.

Same bathroom, same grab bars, and the answer turns on which category the request falls into. Most operators use the two terms interchangeably. The Fair Housing Act does not.

And for a meaningful number of properties, the usual answer is reversed by a second law entirely. More on that below.

The Distinction

The short version: an accommodation is a change to a rule, policy, practice or service. A modification is a structural change to the premises.

Waiving a no-pets policy for an assistance animal is an accommodation. Assigning a parking space closer to the entrance is an accommodation. Both are examples given in 24 CFR 100.204 itself. Widening a doorway is a modification. Installing grab bars is a modification.

24 CFR 100.203 sets the modification rule, and the cost allocation is in the first line of it.

It is unlawful to refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises, occupied or to be occupied by that person, where the modification may be necessary to afford full enjoyment of the premises.

The regulation uses the older statutory term "handicapped person." Current federal guidance generally uses "person with a disability."

Which means the practical question is not "should we say yes." For a reasonable modification, the answer is usually yes. The question is what you can require around it.

What You Can Require: Restoration

In a rental, the landlord may, where it is reasonable to do so, condition permission on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

Four limits sit inside that sentence, and each one catches somebody.

Interior only. The HUD and DOJ joint statement on reasonable modifications is explicit that providers may only require restoration of modifications made to the interior of the dwelling. A ramp to the front door, work in a laundry room, a modification to a building entrance — not required to be restored.

Only where reasonable. The regulation's own examples show where the line falls. Grab bars: the landlord may reasonably require the wall they were attached to be repaired and restored. But it would be unreasonable to require removal of the blocking inside the wall, because reinforced walls do not interfere with anyone's use of the premises and may be needed by a future tenant.

And the doorway example goes further. Where an applicant widens a bathroom doorway for a wheelchair, the landlord may not, in usual circumstances, condition permission on the applicant paying to narrow it again at the end of the lease, because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment.

So "restore it when you leave" is not a default term. It is a condition available in some cases, on the interior, where restoration is actually reasonable. Applying it uniformly to every modification request is where a policy becomes a complaint.

One more, on the next tenant. Where interior modifications do have to be restored, the joint statement notes that the cost falls on the tenant unless the next occupant wants to keep the modification and, where reasonable, is willing to establish a new escrow account. That is worth knowing before you quote a restoration cost to a departing resident.

What You Can Require: Escrow, With Three Constraints

Where it is necessary to ensure with reasonable certainty that funds will be available to pay for restorations at the end of the tenancy, the landlord may negotiate, as part of a restoration agreement, a provision requiring the tenant to pay into an interest bearing escrow account.

Three constraints on that, and each one can create a problem if it is built into a blanket policy.

• It must be interest bearing. The regulation says so.

• The amount must be reasonable and cannot exceed the cost of the restoration. The regulation does not permit a blanket amount unrelated to the restoration that may actually be required.

• And it is not a deposit increase. The regulation states plainly that the landlord may not increase, for persons with disabilities, any customarily required security deposit. An escrow under a restoration agreement is a different instrument with a different basis, and treating it as an add-on to the standard deposit is the version that fails.

The Law That Reverses The Answer

Here is the part that matters most for the readers of this blog, because it applies to many HUD-assisted housing programmes.

The Fair Housing Act generally requires providers to permit modifications at the requester's expense. Recipients of federal financial assistance are also subject to Section 504 of the Rehabilitation Act, and there the framework is different.

HUD's current guidance treats structural changes needed as a reasonable accommodation under Section 504 differently from the Fair Housing Act's modification rule. A covered recipient may be required to provide and pay for the structural change, subject to undue financial and administrative burden and fundamental alteration limits. The requirements sit in 24 CFR Part 8, including §8.24.

So for a covered property, "the resident pays" may simply be wrong.

That distinction does not turn simply on the building. It turns on whether the provider is a Section 504 recipient and the applicable programme relationship, which means a portfolio can contain different cost obligations.

Establish which properties and programmes are covered by Section 504 before a request arrives, not while one is sitting on someone's desk. For a subsidised portfolio, that status is a property-level fact worth recording once rather than researching per request.

And state or local fair housing law may impose a higher standard than the federal floor, which is a third place the answer can change.

The Requests That Need Closer Classification

Some requests need more care, because the same physical change can arise from different circumstances.

Carpet is the useful example. A request to remove carpet because it interferes with a resident's disability-related use may require analysis of whether the requested change is being sought as a structural modification or as part of an accommodation to the provider's practices.

Where the classification is not clear, resolve it before communicating who will pay. The cost position is difficult to withdraw once a resident has been told, and the classification is a legal question rather than an operational preference.

If You Have Been Getting This Wrong

Some readers will recognise their own standard terms above. Four things, in order.

1. Stop the blanket clause first. A restoration condition applied to every modification request, or a fixed escrow figure applied regardless of the work, should come out of the template before anything else happens.

2. Establish what was actually collected. From whom, when, how much, and against which modification. That record is what any subsequent conversation runs on.

3. Take advice before refunding or writing to residents. Whether money must be returned, how far back the issue reaches and how it should be communicated are jurisdiction-specific and fact-specific questions.

4. And fix the process, not just the file. If the template produced the problem once, it produced it every time it was used.

What A Working Process Looks Like

Five things, and the front desk should not have to make the final legal determination.

1. Identify the request before you price it. Is it a change to a rule, policy, practice or service, or a structural change to the premises? Then check whether Section 504 or state or local law changes the default cost position. That sequence should be recorded before anyone quotes a cost.

2. Check the property's status. Whether the property or programme is covered by Section 504, and whether state or local law imposes more. A flag on the property record, not a memory.

3. Do not apply restoration as a default. Interior only, and only where restoration is genuinely reasonable. The regulation's grab bar and doorway examples are the test to reason from.

4. Cost the escrow, do not set it. If a restoration agreement needs an escrow, the figure has to be reasonable and cannot exceed the cost of the restoration, in an interest bearing account.

5. And document the reasoning, not just the outcome. Which category, on what basis, what was required and why. A decision that was correct at the time and unexplained two years later is the same as one that was wrong.

The Question Worth Asking First

Take your last modification request.

Who paid, and which rule did you apply to decide that?

If the answer is "the resident did, because that's the rule," check whether Section 504 applies. For a subsidised portfolio, that one check is the difference between a defensible process and a repeated error with a paper trail.

FAQ

1. What is the difference between a reasonable accommodation and a reasonable modification?
Under the Fair Housing Act, an accommodation generally involves a change to a rule, policy, practice or service, while a modification generally involves a structural change to the premises. The distinction generally determines who bears the cost.

2. Who pays for a reasonable modification?
Under 24 CFR 100.203, it is unlawful to refuse to permit reasonable modifications made at the expense of the person with a disability. Different rules apply where Section 504 is engaged.

3. Can I require the tenant to restore the modification?
In a rental, the landlord may, where it is reasonable to do so, condition permission on the renter agreeing to restore the interior of the premises, reasonable wear and tear excepted. HUD and DOJ guidance is clear that only interior modifications may be subject to restoration.

4. Can I require an escrow account?
Where necessary to ensure with reasonable certainty that funds will be available for restoration, the landlord may negotiate an interest bearing escrow provision as part of a restoration agreement. The amount must be reasonable and cannot exceed the cost of the restoration, and the landlord may not increase any customarily required security deposit.

5. Does this change for recipients of federal assistance?
Yes. Under Section 504, a covered recipient may be required to provide and pay for structural changes needed as a reasonable accommodation, subject to undue financial and administrative burden and fundamental alteration limits.

Sources: 24 CFR 100.203, Reasonable modifications of existing premises, including the cost provision, the restoration condition, the escrow provision, the security deposit restriction and the grab bar and doorway examples; 24 CFR 100.204, Reasonable accommodations, including the assistance animal and parking examples; 24 CFR Part 8, including §8.24, for the Section 504 requirements applying to recipients of federal financial assistance; Cornell Legal Information Institute text of 24 CFR 100.203; the HUD and DOJ Joint Statement on Reasonable Modifications Under the Fair Housing Act, March 2008, for the interior-only restoration principle, the escrow amount principle and the next-occupant provision; and HUD's current guidance on making housing accessible through accommodations and modifications, for the Section 504 treatment. State and local fair housing law may impose higher standards. This article describes general concepts and is not legal advice. Confirm your position with counsel before responding to a specific request.