The Visiting Assistance Animal

THE STORY

Bailey is the property manager of The Colosseum, a 250-unit luxury complex. The Colosseum allows its residents to own pets, but has a list of restricted breeds that includes all the usual suspects: Pit Bills, Rottweilers, German Shepherds, Chows, etc. Recently, Bailey has received several complaints that a Pit Bull was on the property near the 300 Building. None of those who complained could associate the animal with any particular resident, and no one on Bailey’s staff had ever seen the dog when they investigated the complaints.

One afternoon as she was walking the grounds with a member of the maintenance staff, Bailey saw what looked like a Pit Bull being taken out of a car on a leash and entering the 300 Building. Bailey did not recognize the dog’s handler, so she followed them into the 300 Building just in time to see them enter Unit 315. She knocked on the door to Unit 315. The door was answered by Robby, the tenant who lives in the unit.

Bailey asked Robby to step outside to speak to him and advised him that she had seen what looked like a Pit Bull entering his unit. She also noted that she had gotten several complaints about a Pit Bull in the area and that such breeds were prohibited at The Colosseum. Robby told her not to worry, that the dog was his girlfriend’s Emotional Support Animal (ESA) and that they were just visiting for the afternoon. Bailey pointed out that Robby’s lease did not permit “visiting pets” or those that were on the property’s Restricted Breed List.

Robby said that he understood, but that his girlfriend has an anxiety disorder, and the dog is an ESA that helps to prevent her from having panic attacks. Bailey has been a property manager for three years, and.each year she takes a free online Fair Housing class that her company requires. She recalled learning that she is required to allow assistance animals if a tenant needs one because of a disability. But, since Robby was not disabled, she reasoned that she does not have to allow the dog onto the property. She explained to Robby that she could only allow Service Animals and ESA’s when a tenant, rather than a guest, is disabled. Robby told her that he didn’t think she was right, as his girlfriend had been through this issue before when visiting other friends.

Bailey wasn’t about to let a tenant tell her how to manage the property. Besides, she knew that her property owner could be liable for any damage the dog caused on the property. She told Robby that he must either remove the dog or she would have to give him a termination notice for non-compliance with the Restricted Breed rule. Robby was not happy, but he escorted his girlfriend out of the unit and they all left the property.

Bailey returned to the office, relieved to have solved the mystery of the vanishing Pit Bull. Her assistant manager happened to be speaking with their attorney about some evictions to be filed. Just to confirm that she had done the right thing, Bailey hopped on the call and explained the situation to the attorney. She did not like what she found out.

THE LAW

Bailey’s attorney, an expert and landlord-tenant law, explained that the Fair Housing Act prohibits landlords from denying housing, making housing unavailable, or otherwise discriminating based on the disability of (1) any person that rents or seeks to rent, (2) any person who resides or intends to reside in the rental unit, or (3) anyone associated with a person that rents or seeks to rent. The FHA goes on to say that discrimination includes refusing to grant reasonable accommodations to rules and policies when the accommodation is necessary to afford the disabled person an equal opportunity to use and enjoy their housing.

The attorney went to explain that, if Bailey were to evict Robby based on the presence of the girlfriend’s ESA, she would arguably be denying housing to Robby based on the disability of a person associated with him, which is prohibited by the FHA.

THE NEVADA CASE

Unfortunately for landlords, there are no published cases addressing this issue and HUD has not issued any official guidance. However, in 2010, HUD filed a lawsuit against two Nevada property owners who had refused to allow a guest with an Emotional Support Animal (ESA) visit a tenant at the property and had tried to evict the tenant for violating the landlord’s no-pet policy. You can read the full complaint here.

HUD alleged three primary violations of the FHA in its complaint:

1. That the landlord had denied housing to the tenant based on the disability of the guest, who was “a person associated with” the tenant.
2. That the landlord had refused to grant the tenant a reasonable accommodation to the no-pet policy.
3. That the landlord had discriminated against the tenant in the terms, conditions, or privileges connected with the rental based on the disability of the guest, who was “a person associated with” the tenant.

I certainly disagree with their second argument, as the FHA only requires that accommodations be granted in order to allow a disabled person the equal opportunity to use and enjoy their housing. In these scenarios, the disabled guest is not prohibited from using and enjoying their housing, so I don’t buy the “reasonable accommodation” argument.

I also disagree with the third argument, as the landlord did not apply its rules or policies differently based on the disability of the guest. In fact, the landlord applied its no-pet policy the same to the subject tenant as to the others by enforcing it uniformly.

However, HUD had a legitimate argument that the landlord denied housing to the tenant based on the disability of the guest, which is an explicit violation of the FHA. Faced with this scenario, the landlord settled the case by agreeing to pay $10,000.00 to the tenants and to abide by a host of administrative procedures. You can read the entire settlement agreement here.

THE PRIMARY LESSON

HUD will file Housing Discrimination lawsuits against landlords who refuse to grant accommodations to tenants based on the disabilities of their guests, and there is an explicit basis in the FHA to hold landlords liable if they attempt to evict tenants based on acts related to the disability of their guests. So, landlords should treat accommodation requests based on the disability of a guest the same as those based on the disability of a tenant. They may request certification from the guest’s healthcare professional that the guest is disabled and/or has a disability related need for the accommodation if either point is not known or obvious. If reliable documentation of those facts is produced, the accommodation should be granted.

THE SECONDARY LESSON

Don't skimp on your Fair Housing training. It's is an investment in loss-mitigation that will pay for itself many times over by shielding you from the administrative and financial headaches connected to Housing Discrimination suits. As with most things, you get what you pay for.