My Assistance Animal's Name is Cujo

In my last post, our property manager, Noah, from Stoops Pavilion had given written notice to his resident, Jennifer, that she would be allowed to have a support animal as a reasonable accommodation for her disability. Noah granted Jennifer’s request for the animal based on the letter from her therapist stating that her disability created a need for the dog in order to allow her to use and enjoy her apartment. Noah’s notice to Jennifer had asked her to come to the management office to show him the dog and to sign a lease addendum outlining the rights and obligations associated with the dog.

Jennifer gladly scheduled a time to meet with Noah, and showed up to their appointment with her new dog: a grey 60-pound Pit Bull named Ulis. Noah began to panic. Like most people, he had read all the headlines about children being mauled by Pit Bulls. Even under the old leases at Stoops Pavilion that allowed pets, Pit Bulls were a restricted breed. Now he’d agreed to let Jennifer have a dog that might end up scaring off other tenants or, even worse, hurting someone.

Noah went ahead and took pictures of Ulis and completed all the paperwork with Jennifer. As soon as they left, he called his supervisor in a panic, sure that he had just opened the property up to some significant liability.  Could he have denied Ulis from being Jennifer’s service dog? Like most answers when dealing with legal issues, it depends.

Despite their reputation as aggressive and dangerous animals, Pit Bulls as an entire breed cannot be vetoed as service/support animals. This holds true for all breeds, whether dealing with Poodles and Labrador retrievers or German Shepherds and Rottweilers. No breed can be excluded from being a service/support animal based on its reputation, nor can a landlord impose size or weight limitations on service/support animals.

So, when can a landlord reject a service or support animal? We learned from a prior article that a particular accommodation may be rejected by the landlord if it (1) creates an undue financial or administrative burden for the landlord or (2) fundamentally alters the nature of the landlord’s business. In addition, the landlord may reject the specific service/support animal proposed by the tenant if there is evidence, based on the animal’s prior acts, that it would (3) create a direct threat to the health or safety of others that cannot be reduced or eliminated by other means, or (4) would cause substantial physical damage to the property of the landlord or other tenants, which damage could not be reduced or eliminated by other means.

Wait, isn’t it obvious that Ulis would create a danger to other residents? I mean, he’s a Pit Bull! Regardless of our personal feelings towards any breed of dog, Fair Housing law does not allow us to judge any one dog based on its breed. Instead, we have to look at the prior acts of that particular dog. If the dog has a history of biting or being aggressive with people or causing damage to property, then you would have an argument to reject it. As a practical matter, you will rarely get accurate information about an animal’s history, although you are free to seek such information from the tenant, prior landlords, and dog’s prior owner or keeper.

This creates a frightening proposition for landlords: they cannot prove that certain animals are potentially dangerous because they don’t have accurate information about the animal’s history. Because they cannot “prove” that the dog has acted dangerously in the past, they are “required” to permit the dog to be housed on their property as an accommodation to disabled tenants. Under Kentucky’s current dog-bite law, discussed here, because the landlord has “permitted” the dog to be housed on his property, he is now liable for any injury caused by the dog on or near the property. It’s enough to make a landlord contact his realtor and put his property on the market for sale.

While this issue is the next frontier of litigation in landlord-tenant law, I think landlords have a strong argument against liability in these cases. Current law only gives liability to landlords who “permit” certain dogs to be housed on their property. In accommodation cases, especially on properties with policies against pets, the landlord has a strong argument that he has not “permitted” the service/support animal to be housed on the property, but rather was “required” to allow the animal, and would not have done so if not required by law. In other words, the dog was only on the property as a result of a legal requirement, not because of the landlord’s choice.

So what’s a landlord to do? The best practice is simply to do the right thing and grant the accommodation. This practice typically carries the additional benefit of making you more sympathetic to a jury should a lawsuit ensue. It’s much more likely that you’d face a housing discrimination lawsuit for failure to grant the accommodation than that you’d face a personal injury lawsuit as a result of granting the accommodation. In this case, thankfully, doing the right thing really is the right thing to do.