FILED Jun 14 2024, 8:43 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Gerald A. Sanders, Appellant-Defendant,
v.
AHEPA 78 VI Apartments, Inc., Appellee-Plaintiff.
June 14, 2024
Court of Appeals Case No. 23A-EV-1502
Appeal from the Lake Superior Court
The Honorable Nicholas J. Schiralli, Judge
The Honorable Catheron A. Paras, Magistrate
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 1 of 16 Trial Court Cause No. 45D07-2304-EV-1153
Opinion by Senior Judge Robb Judges Riley and Brown concur.
Robb, Senior Judge.
Statement of the Case [1] Gerald Sanders appeals the trial court’s judgment in favor of AHEPA 78 VI
Apartments, alleging his eviction was erroneous because AHEPA violated both
the Fair Housing Amendments Act (FHAA) and the Rehabilitation Act and
failed to show his material noncompliance with the lease. Finding no error, we
affirm the trial court’s order of eviction.
Issues [2] Sanders presents two issues for our review, which we restate as:
I. Whether the trial court erred by failing to find AHEPA 1 violated the FHAA and the Rehabilitation Act.
1 Sanders phrases part of his first argument as: “The trial court erred by granting a judgment of possession when the undisputed evidence showed that [AHEPA] had not engaged in the required process after [Sanders] requested a reasonable accommodation for his disability.” Appellant’s Br. p. 13. However, the interactive process Sanders refers to does not apply to the FHAA. The statutory language of the FHAA prohibits failing to make reasonable accommodations, not failing to interactively engage. Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1192-94 (9th Cir. 2021) (where disabled tenant asserted that FHAA imposes standalone liability on landlord when it fails to engage in interactive process with tenant, court explained that FHAA does not
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 2 of 16 II. Whether the trial court erred by concluding Sanders materially violated his lease.
Facts and Procedural History [3] AHEPA participates in a federally subsidized housing program that provides
supportive housing for the elderly under Section 202 of the Housing Act of
1959. In 2009, Sanders’ housing application was accepted, and he signed a
lease to reside in one of the units at AHEPA.
[4] In February 2022, AHEPA sent a Notice of Lease Agreement Violation to
Sanders. The notice recapped that during the prior month management had
noticed a urine odor coming from Sanders’ unit and had directed its service
coordinator to offer him assistance. The service coordinator reported that
Sanders informed her he already had a house cleaner in place. The notice
further stated that management was recently again in Sanders’ hallway and
“could smell the urine coming from [his] unit taking over the entire 2nd floor.”
Ex. Vol. 1, p. 16. The notice then informed Sanders that the violation was a
material noncompliance with his lease terms to keep the premises in a clean and
sanitary condition and directed him to remedy the problem by February 24. Id.
refer to interactive process; rather, statutory language of ADA makes interactive process necessary in employment context, but in statutory language in context of public accommodations (i.e., FHAA), interactive process is neither required nor applicable and therefore court held there is no independent basis of liability under FHAA for landlord’s failure to engage in interactive process with tenant).
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 3 of 16 [5] On April 26, 2022, AHEPA sent Sanders a second Notice of Lease Agreement
Violation. This notice informed Sanders that management had received many
complaints from neighbors as well as the maintenance technician regarding the
odor coming from his unit. Angela Williams, the property manager, stated she
had gone to the building and noted “the smell has taken over the hallway.” Id.
at 17. The notice advised Sanders that the violation was a material
noncompliance with his lease agreement to keep the premises in a clean and
sanitary condition and directed that it be remedied immediately. Id.
[6] Six months later on October 25, 2022, Williams sent Sanders a letter stating:
Mr. Sanders I am writing this as a courtesy because if you receive one more lease violation you will have to leave the building. I am still receiving complaints about the urine smell coming from your unit going into the hallway, from residents, maintenance, and pest control. I just walked the hall, and their complaints are valid. It is very important that you take care of your unit immediately and that it is kept clean going forward and doesn’t revert back.
Mr. Sanders this is my final attempt to avoid issuing you a 3rd lease violation. Please do whatever is needed to make sure your unit stays in compliance with HUD standards.
Id. at 18.
[7] On November 9, AHEPA management performed its semi-annual unit
inspection of Sanders’ apartment and issued its report concluding that his
apartment failed the inspection due to housekeeping. Id. at 19. Sanders was
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 4 of 16 advised that his unit would be reinspected in fourteen days and, if the issue was
not corrected, it would constitute a lease violation. Id.
[8] On January 20, 2023, AHEPA issued a third Notice of Lease Agreement
Violation to Sanders. The notice outlined that on January 9 the property
manager accompanied a maintenance technician to Sanders’ apartment for an
unrelated repair. As soon as they exited the elevator on Sanders’ floor, the
property manager “could smell urine that got progressively worse” as they
walked to Sanders’ door. Id. at 21. The notice recapped that the property
manager had asked Sanders if he was still taking steps to eliminate the odor
because it seemed to be worse. Id. Sanders responded in the affirmative, and
the property manager advised him she was unsure what steps were available
beyond those already taken. The property manager had previously referred him
to the service coordinator for assistance, provided him contact information for
housekeepers, and spoken with his sister. Id. The notice advised Sanders that,
due to the violation, he was in material noncompliance with his lease for not
keeping his unit in a clean and sanitary condition and that it was his final
notice. Id.
[9] Also on January 20, AHEPA’s attorney sent Sanders a Notice to Cure advising
Sanders to resolve the odor issue by January 27. Id. at 20. The letter also stated
that AHEPA would reinspect Sanders’ unit after January 27 to determine his
compliance. Id. The issue was not resolved, and, on January 31, AHEPA’s
attorney sent Sanders a 30 Day Notice to Vacate by March 2. Id. at 22.
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 5 of 16 Williams later extended this deadline into April as a courtesy because she “saw
[Sanders] was trying.” Tr. Vol. 2, p. 14.
[10] Sanders then obtained counsel who emailed AHEPA’s attorney on March 21,
2023, denying that any unsanitary conditions existed and claiming that if such
conditions did exist, they were the result of Sanders’ disability. Ex. Vol. 1, p.
25. Sanders’ counsel stated that Sanders suffered from “incontinence and
digestive issues” and was under a doctor’s care for those conditions. Id. The
email further stated that Sanders had “a handicap as defined by the Fair
Housing Act” and requested that AHEPA “make reasonable accommodations
in order to allow him to remain in his unit[.]” Id. Specifically, Sanders and his
counsel requested that AHEPA (1) “[p]rovide available housekeeping services
to assist him with hygienic concerns in relation to his condition”; (2) “[r]emove
any carpeting from the unit and replace with some kind of laminate-type
flooring that is easier to clean and does not retain odor as easily”; and (3) “[d]o
not terminate Mr. Sander’s [sic] lease or evict him, unless and until the above
reasonable accommodations are implemented.” Id.
[11] In the meantime, AHEPA received a written complaint from a resident that
lived next door to Sanders. The complaint, dated April 3, 2023, stated that the
"extremely strong odor of urine” in the hallway was noticeable “as soon as you
stepped off the elevator” and that her visitors and other tenants had commented
on it. Id. at 23. She also informed management that she purchased plug-in air
fresheners for the hallway to eliminate as much of the odor as possible. Id.
However, the air fresheners did not solve the problem. Tr. Vol. 2, p. 7.
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 6 of 16 [12] Thereafter, AHEPA filed a Notice of Claim for Eviction on April 5, and an
eviction hearing was held on April 26. Williams testified on behalf of AHEPA
that the urine odor from Sanders’ apartment had seeped “into the entire
hallway” and “in the stairwell.” Id. at 3. She recounted one of the last
inspections she and the maintenance staff conducted on the unit, stating that
they “could barely go in, it was so bad” and that their “feet would stick to the
floor.” Id. Williams also indicated that the management office had received
numerous complaints from residents who lived on the same side of the building
as Sanders and that the urine odor is “in the walls, it’s everywhere to where the
whole apartment will have to be gutted and redone.” Id. at 13, 27, 3-4.
Williams further testified that when Sanders came to her office recently, he “left
a smell.” Id. at 8. Counsel then questioned Williams:
Q Do you have anything against this tenant?
A I don’t. I love all my tenants. This was the first time I’ve actually spoken freely. Normally I try to cover it up to – not cover it up, but just make it not so bad, not sound so bad. Like I don’t want to embarrass him, he’s a good person. It’s not – nothing I can do, I’m sorry.
Q Have you had your service coordinator try and assist him to find housing?
A I have.
Q Did he participate in those services?
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 7 of 16 A He did.
Q And have you tried to do everything you can to resolve this?
A We’ve done everything, including the letter that I sent in between the two lease violations. I just came up with that because I didn’t want to give him a third one. It was just a courtesy, I’ve just been trying. He’s had a number of service coordination referrals even to other service coordinators when I first got there – it’s been almost two years – for the same issue.
Id. at 8-9.
[13] Sanders testified on his own behalf and stated that he paid to have his carpet
cleaned and deodorized in December 2022. He also testified that he had
washed all the walls and woodwork with disinfectant three times and that he
threw out his mattress. The court determined Sanders was in violation of the
lease and granted the eviction. Sanders now appeals.
Discussion and Decision [14] We review small claims judgments for clear error, except questions of law
which we review de novo. Muldowney v. Lincoln Park, LLC, 83 N.E.3d 130, 132
(Ind. Ct. App. 2017). Although small claims trials should be informal, see
Indiana Small Claims Rule 8(A), each party to a small claims action still has the
burden of proof for its claim or counterclaim and is responsible for bringing
evidence to court that is sufficient to sustain that burden. Muldowney, 83
N.E.3d at 132.
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 8 of 16 I. Violation of Fair Housing Amendments Act and Rehabilitation Act
A. The Statutes at Issue [15] The Fair Housing Act (FHA) was passed in 1968 to provide for fair housing
across the country. Valencia v. City of Springfield, Illinois, 883 F.3d 959, 966 (7th
Cir. 2018) (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300
F.3d 775, 782 (7th Cir. 2002)). To enforce its goal of non-discrimination in
housing, the FHA originally prohibited discrimination only on the basis of race,
color, religion, or national origin, but the Fair Housing Amendments Act of
1988 extended its protection to persons with disabilities. See Pub. L. No. 100-
430, 102 Stat. 1619. To that end, the FHAA makes it unlawful “[t]o
discriminate in the sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap.” 42 U.S.C. § 3604(f)(1)
(using term “handicap” while other federal statutes use term “disability”).
[16] Similarly prohibiting discrimination based on a disability, Section 504 of the
Rehabilitation Act of 1973 applies only to programs that receive federal
funding. Although more narrowly tailored, this Act is a predecessor to the
Americans with Disabilities Act. The Act “constitutes the establishment of a
broad government policy that programs receiving Federal financial assistance
shall be operated without discrimination on the basis of handicap.” Lloyd v.
Reg’l Transp. Auth., 548 F.2d 1277, 1285 (7th Cir. 1977). Specifically, the
Rehabilitation Act provides: “No otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 9 of 16 the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance[.]” 29
U.S.C. § 794(a).
B. Analysis [17] Sanders contends the eviction order is unlawful because AHEPA failed to make
reasonable accommodations for his disability as required by both the FHAA
and the Rehabilitation Act. AHEPA counters that Sanders failed to show he is
disabled within the meaning of the FHAA and the Rehabilitation Act in order
to trigger the protections afforded by these acts.
[18] To prevail on a claim under the FHAA that a housing provider refused to 2 reasonably accommodate a disability, a plaintiff must establish that (1) he is
disabled within the meaning of the FHAA; (2) he requested a reasonable
accommodation for such disability; (3) the requested accommodation was
necessary to afford him an opportunity to use and enjoy his dwelling; and (4)
the defendant refused to make the requested accommodation. Furbee v. Wilson,
144 N.E.3d 801, 806 (Ind. Ct. App. 2020); 42 U.S.C. § 3604(f)(3)(B).
2 Although the FHAA refers to discrimination based on “handicap” while the Rehabilitation Act and other federal statutes use the term “disability,” the definition of the terms is substantively the same. See 42 U.S.C. § 3602(h), 29 U.S.C. § 705(9)(B), 42 U.S.C. § 12102(2). For that reason, courts have used the terms interchangeably. However, we remain mindful that the preferred term is “disability.” See Furbee v. Wilson, 144 N.E.3d 801, 806 n.6 (Ind. Ct. App. 2020) (recognizing that disability scholars generally prefer term “disability”).
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 10 of 16 [19] A person is considered disabled, and thereby protected under the FHAA, if he
or she (1) has a physical or mental impairment which substantially limits one or
more major life activities; (2) has a record of such impairment; or (3) is regarded
as having such an impairment. 42 U.S.C. § 3602(h). The United States
Supreme Court has devised a three-part test for determining whether an
individual is “disabled.” Furnish v. SVI Sys., Inc., 270 F.3d 445, 449 (7th Cir.
2001) (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998)). First, we determine
whether the person suffers from a physical or mental impairment. Id. If so, we
next determine whether the affected major life activity claimed by the
individual constitutes a major life activity under the FHAA. See id. And
finally, we analyze whether the person’s impairment substantially limited that
major life activity. Id.
[20] Here, Sanders established that he suffers from an incontinence problem. He
testified at the eviction hearing that the issue had been going on for several
years and that he had a new doctor who had given him medication to try to
resolve the problem. Tr. Vol. 2, pp. 15-16. Sanders offered neither medical
records nor expert medical testimony to support his claim. We will assume for
our analysis here that Sanders’ problem qualifies as a physical impairment.
[21] Next, we examine the alleged major life activity that is affected by Sanders’
impairment. “Major life activities” are defined as “‘[c]aring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
sitting, reaching, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting with others, and
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 11 of 16 working.’” Knox Cnty. Ass’n for Retarded Citizens, Inc. v. Davis, 100 N.E.3d 291,
298 (Ind. Ct. App. 2018) (quoting 29 C.F.R. § 1630.2(i)(1)(i) (2012)), aff’d on
reh’g. While this list is illustrative rather than exhaustive, Furnish, 270 F.3d at
449, Sanders has not identified any major life activity that was affected by his
impairment.
[22] Notably, Sanders was quite physically capable despite his impairment. He
testified that he lives alone and that, in an attempt to rid his apartment of the
strong urine smell, he “personally washed . . . all the walls and woodwork in
the apartment with disinfectant . . . three times.” Tr. Vol. 2, p. 16. Further, he
is able to maintain employment, as he testified that he has worked at Kohl’s
department store for over fifteen years. Id. at 17. Only when the impact of an
impairment substantially limits a major life activity, such as working, is an
individual considered disabled within the meaning of the FHAA. Furnish, 270
F.3d at 450. In sum, while Sanders’ incontinence may qualify as a physical
impairment, he did not fulfill his burden of showing that it rises to the level of a
disability as defined by the FHAA because it does not substantially limit a
major life activity. See Jones v. Hous. Auth. of City of S. Bend, 915 N.E.2d 490,
495 (Ind. Ct. App. 2009) (stating that although tenant had physical impairment
as defined under ADA and Rehabilitation Act, he also was required to show
that such impairment limited one or more of his major life activities to be
considered disabled), trans. denied; see also Furnish, 270 F.3d at 450 (where
plaintiff established Hepatitis B—chronic illness affecting functioning of major
organ—constituted physical impairment, yet never asserted impairment
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 12 of 16 substantially limited working or any other major life activity, court determined
plaintiff not disabled under ADA).
[23] Moreover, we need not conduct a separate analysis of Sanders’ claim under the
Rehabilitation Act because “‘the same analysis generally applies’” for claims
brought under both the FHAA and the Rehabilitation Act. New Horizons
Rehab., Inc. v. State, 400 F. Supp. 3d 751, 759 (S.D. Ind. 2019) (quoting Valencia,
883 F.3d at 967). Therefore, Sanders’ Rehabilitation Act claim fails for the 3 same reason as his FHAA claim.
II. Violation of Lease [24] Sanders next claims the trial court erred in ordering his eviction because
AHEPA did not establish his material noncompliance with the lease as required
to terminate the agreement.
[25] Sanders’ lease provided that AHEPA could terminate the agreement upon
material noncompliance with its terms. The lease defined “material
noncompliance” as: (1) one or more substantial violations of the lease, (2)
repeated minor violations of the lease which disrupt the livability of the
building, adversely affect the health or safety of any person or the right of any
tenant to the quiet enjoyment of the leased premises and related building
3 Sanders makes an allegation that “free housecleaning services were an option through [AHEPA]” about which he was unaware “until a few weeks before trial.” Appellant’s Br. p. 8. We make no determination on whether these services were available and, if so, whether their availability was concealed from Sanders because such a service would be an accommodation once a disability was established, and Sanders did not meet his burden of showing he was disabled.
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 13 of 16 facilities, interfere with the management of the building, or have an adverse
financial effect on the building. Ex. Vol. 1, pp. 4, 5 (Lease ¶¶ 8(b)(1), (d)). By
signing the lease, Sanders agreed to “keep the premises in a clean and sanitary
condition . . . .” Id. at 6-7 (Lease ¶ 13(b)). In addition, AHEPA’s Resident
Handbook contained a housekeeping requirement that each “resident is
responsible for the upkeep of his or her own apartment. Any accumulation of
dirt, garbage or slovenly housekeeping is considered a safety hazard and will
not be acceptable.” Id. at 17, 21.
[26] At the eviction hearing, AHEPA’s counsel argued that there have been at least
three minor violations, that the issue has persisted for fifteen months, and that it
has disturbed the livability of the building. Tr. Vol. 2, pp. 30, 28. The court
found that Sanders was clearly in violation of the lease and ordered his eviction.
This finding is amply supported by the record.
[27] The record reveals the odor issue began some time prior to January 2022. On
January 28, 2022, Williams referred Sanders to AHEPA’s service coordinator
and listed the reason for referral as “[r]eceiving complaints of the hallway
smelling of urine again!” Ex. Vol. 1, p. 15. AHEPA’s evidence, which
included the testimony of Williams and documentation of the repeated lease
violation notices issued to Sanders throughout 2022 and into 2023 as well as
complaints from other tenants and staff, overwhelmingly established that an
intolerable and ongoing urine odor existed in Sanders’ unit and permeated to
the common areas. This condition thus violated Sanders’ obligation to keep his
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 14 of 16 unit in a clean and sanitary condition and not interfere with the livability of the
building.
[28] Although Sanders made attempts at cleaning and deodorizing the apartment,
the pervasive, offensive odor remained. Indeed, AHEPA management received
the written complaint from Sanders’ neighbor in April 2023 establishing that the
odor outside Sanders’ apartment persisted and was evident just a few weeks
before the eviction hearing. Like the trial court and AHEPA’s property
manager, we are sympathetic to Sanders’ physical issues and financial
constraints; however, it is clear the unpleasant odor resulted in repeated and
ongoing violations of the lease provisions for a period well over a year, thereby
disrupting the livability of the building and constituting a material
noncompliance with the lease.
Conclusion [29] We conclude the trial court did not err by entering a judgment of eviction.
Sanders failed to show that he is disabled and thereby protected under the
FHAA and/or Rehabilitation Act, and the persistent urine odor emanating
from his apartment and infiltrating the common areas of the building
constituted a material noncompliance with the terms of the lease agreement.
[30] Affirmed.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 15 of 16 ATTORNEYS FOR APPELLANT Cristin L. Just Indiana Legal Services, Inc. Merrillville, Indiana
Andrew T. Thomas Indiana Legal Services, Inc. Fort Wayne, Indiana
Rachel E. Hogenkamp Indiana Legal Services, Inc. Indianapolis, Indiana
ATTORNEY FOR APPELLEE Kevin E. Werner Crown Point, Indiana
Court of Appeals of Indiana | Opinion 23A-EV-1502 | June 14, 2024 Page 16 of 16