How Treating Every Tenant the Same Can Be Discriminatory

         Holly is the new property manager at a brand new luxury apartment community, The Calipari Resort. Holly’s new leasing agent is doing a fantastic job of filling the few remaining vacancies in the community. Everyone at the community seems very excited about the new rental units and amenities. One afternoon, the leasing agent asks to meet with Holly about a prospective resident. During the meeting, the prospective resident explains how excited she is to find such a wonderful community, but was told by the leasing agent that the community has a strict policy against pets. The resident explains to Holly that she served in the Iraq war and returned with a mental illness related to her experience in a combat zone. As a result, the resident says she needs a dog for therapeutic support.

          Holly is genuinely torn. She has several family members who are veterans, and has heard of the very real issues faced by veterans when they return home from combat areas. Unfortunately, in order to preserve the brand new condition of the community, The Calipari Resort has a strict no-pet policy that is explicitly stated in every lease. Holly remembers learning in her property management training that the cardinal rule of property management is to “treat every tenant the same”. As a result, Holly reviews the lease with the resident, expresses her sympathy, but tells the resident that she is not allowed to have a dog on the property as a result of the “no-pet policy”. Further, she advises the resident that if she signs a lease and then brings the dog onto the property, the resident will be in breach of the lease and her tenancy will have to be terminated, as Holly must apply the lease terms and eviction policy “the same” to all residents. When the prospective resident objects and refers to her disability, Holly kindly but firmly repeats her position, and advises the resident that she should probably look for an apartment in a community that allows pets.

           A couple of days later, Holly is still disappointed that she lost a potentially excellent resident because the resident insisted on having a pet. Her disappointment grows to shock when she opens a certified letter from the local Human Rights Commission stating that she and The Calipari Resort have been named as defendants in a Housing Discrimination Complaint filed by the prospective resident.

          Holly immediately calls her supervisor to let her know about the discrimination complaint. The supervisor directs Holly to notify their local attorney to find out how to respond and to explain why anyone would complain that Holly had discriminated when all she had done was apply the community policy the same way to every person.

          What Holly learned when she contacted her attorney was that the old property management adage about “treating everyone the same” was incomplete and misleading. She learned that federal and state fair housing law requires that, under certain circumstances, landlords are required to treat some tenants differently and make exceptions to their policies and rules.

          Specifically, landlords are required to make “reasonable accommodations” for tenants who are disabled. A tenant is disabled if he or she has a physical or mental impairment that substantially limits a major life activity.  If your tenant is disabled, or you believe them to be disabled, or the tenant has a record of being disabled, the law requires you to make reasonable accommodations if requested by the tenant. An “accommodation” is an exception to your rules, policies, and procedures that apply to other tenants.

          In this case, the tenant’s request to have a dog for therapeutic support constituted a request for an accommodation to the landlord’s no-pet policy. What Holly should have done was to request that the tenant provide reliable verification that she (1) was disabled under the Fair Housing Act definition above and (2) needed the dog as a result of the disability in order to use and enjoy her housing on an equal basis with non-disabled tenants.

          If the tenant provides such verification, the next step is to evaluate whether the resident’s requested accommodation was “reasonable”. Under Fair Housing law, an accommodation request is reasonable unless it (1) imposes an undue financial or administrative burden on the landlord, (2) fundamentally alters the nature of the landlord’s business, (3) creates a direct threat to the health and safety of other residents, or (4) would likely result in substantial physical damage to the premises. In this case, allowing the resident to have a dog would not create any undue financial or administrative burden on the landlord because the cost to the landlord would be insignificant. Allowing the dog also would not fundamentally alter the nature of the landlord’s business, as neither the landlord nor its staff would have to undertake any significant activities that are significantly outside the scope of what they would otherwise do as a landlord. Holly might have to do some further investigation to determine if the animal had demonstrated dangerous behavior or had caused property damage.

           In this case, though she was acting with the best of intentions, Holly was clearly wrong to deny the requested accommodation without further evaluation. When landlords are on the wrong end of Housing Discrimination Complaints, they pay for it, whether by paying their attorney to guide them through the investigation of the Housing Discrimination Complaint and defend the ensuing lawsuit, or via settlement with the resident. That’s why we’re here; to help landlords on the front end. Had Holly been a reader of kylandlordlaw.com, she’d have followed the necessary procedures to grant the accommodation request, and her property would have saved a ton of money.