The Fair Housing Amendments Act (FHAA) makes it unlawful to discriminate against disabled individuals in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of disability. 42 U.S.C.S. § 3604(f)(1). The FHAA’s definition of unlawful discrimination encompasses a refusal to modify or change rules, policies, practices or services as a reasonable accommodation when such modifications or changes may be necessary to afford such person equal opportunity to use and enjoy a dwelling. 42 U.S.C.S. § 3604(f)(3)(B). In defining what constitutes a “reasonable accommodation,” courts look to the principles of the Americans with Disabilities Act (ADA). This inquiry requires a case-by-case determination, taking into consideration the need to impose reasonable boundaries in accomplishing the statute’s purpose.
The “No Pet” Policy
One of the policies that may be subject to modification is the “no pet” policy under the FHAA applicable to private housing providers, and section 504 of the Rehabilitation Act, which applies to recipients of federal subsidies or other financial assistance from the U.S. Department of Housing and Urban Development (HUD). HUD’s April 2013 Guidance on “assistance animals,” which applies to FHAA and section 504 providers, is the key operative document in this context. Unlike “service animals” under the ADA that must be trained to perform tasks or specific functions to ameliorate the disability, “assistance animals” under HUD’s Guidance are not required to be individually trained or certified. In addition, contrary to court rulings (see Zatopa v. Lowe, No. C 02-02543, 2, 10 (N.D. Cal. August 2002)) that have held that pit bulls do not qualify as emotional support animals, HUD has taken the position that “breed, size, and weight limitations may not be applied to an assistance animal.” A housing provider may deny a request for an assistance animal only where “(1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.” As in all accommodation situations, a provider may deny any accommodation that would cause an undue financial or administrative burden or fundamentally alter the nature of the housing provider’s operations.
This 2013 guidance from HUD means that the Zatopa v. Lowe case and others like it will likely be revisited. Indeed, at least two states have confronted the issue of pit bulls as reasonable accommodations under the federal fair housing statutes since 2013. One state, Maryland, recently invalidated a 2012 case in which the Maryland Court of Appeals had held that pit bulls are inherently dangerous. See Tracey v. Solensky, 427 Md. 627, 50 A.3d 1075 (2012). The controversial Tracey court had held that pit bulls were inherently dangerous and that their owners and the owners’ landlords were strictly liable for their attacks. On April 8, 2014, the governor of Maryland signed HB 73/SB 247 into law, effective immediately, pursuant to which pit bulls are no longer considered “inherently dangerous” in Maryland. The bill holds owners liable for injuries caused by their dogs, regardless of the breed, and removes liability for landlords unless the landlord knew or should have known that the dog was actually dangerous.
Florida also recently addressed this issue in Warren v. Delvista Towers, No. 13-23074-civ, S.D. Florida, Miami Div. (July 30, 2014), a “failure to accommodate” case under the FHAA. One of the issues was whether a Miami-Dade County ordinance banning pit bulls made the plaintiff’s accommodation request per se unreasonable. The federal district court held that if the county ordinance was enforced, it would violate the FHAA by permitting a discriminatory housing practice because the plaintiff would not be afforded “an equal opportunity to use and enjoy [his] dwelling” because of the dog’s breed. The court therefore held that the ordinance was preempted by the FHAA in this context and that the only material issue was whether the dog posed a direct threat to members of the condominium association and, if so, whether the threat could be reduced by other reasonable accommodations.
In light of the expansive regulatory guidance, it is imperative that property managers and landlords tread very carefully when considering reasonable accommodation requests involving assistance animals. It will not be enough for landlords to claim that certain types of animals, such as pit bulls, are inherently dangerous or pose a theoretical threat. Instead, in reviewing a request for an assistance animal, the landlord must engage in an interactive process to discuss all reasonable options and individually assess any potential “direct threat” or risk of causing “substantial physical damage.” Even if one of these exceptions arguably applies, the analysis should not end there. The interactive process obligation means that landlords must also consider alternative reasonable accommodations that might reduce the real or potential threat.