We recently had the question, “I have a tenant asking for a reasonable accommodation based on Fair Housing; the tenant wants to run a ‘Special Residential Facility.’ My landlord has one residential rental property; does the landlord have to allow this?”

A special residential facility is a residence where care for not more than eight mentally ill, intellectually or developmentally disabled persons reside with one or more resident counselors or other staff persons and licensed by the Virginia Department of Behavioral Health and Developmental Services, or its successor; provided that mental illness and developmental disability shall not include current illegal use of or addiction to a controlled substance as defined in § 54.1-3401 of the Code of Virginia.

You are likely thinking to yourself that this is a Fair Housing issue. You may be tempted to begin the test for a reasonable accommodation or modification. But before you do any of that, let’s turn to the statute:

36-96.3. Unlawful discriminatory housing practices

A. It shall be an unlawful discriminatory housing practice for any person to:

1. Refuse to sell or rent after the making of a bona fide offer or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, national origin, sex, elderliness, source of funds, familial status, sexual orientation, gender identity, or military status;
2. Discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in the connection therewith to any person because of race, color, religion, national origin, sex, elderliness, source of funds, familial status, sexual orientation, gender identity, or military status;

It would appear this situation applies, but let’s break it down further. The tenant’s request is not a reasonable accommodation or modification to change a rule or practice based on their disability. The tenant’s request is to run a commercial venture. Said differently, were the landlord to deny, they are not denying housing or services to a third party (the tenant’s clients) based on their disability; nor are they denying the tenant’s request based on any protected class they may be, if any.  

Again, the landlord is renting a residential property, not a commercial property.  

Let’s make a U-turn, what if the landlord does want to allow this? 

The first thing the landlord needs to do is make sure the property is zoned for this. The landlord can even apply for a variance if it is not zoned for this. If it is properly zoned or a variance is granted then the landlord ought to make sure all the proper permits are gathered, and a commercial lease is drawn up. I highly advise the landlord to seek the advice of an attorney if they want to proceed.  

To sum it all up, if a tenant requests to run a special residential facility or any other sort of health care residence in a residential property, it is not a violation of Fair Housing to say no.  

Want even more legal insight? Be sure to check out the latest episode of Caveat REALTOR® Podcast called AI Gone Rogue. We discuss some potential reasons to be cautious when using AI, especially surrounding laws in your day-to-day business.