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Landlord Lawyer By Will Brownlee, Brownlee Law Firm, PLLC / Loebsack & Brownlee, PLLC The Myth of Dog Breeds and Liability, Part 2


As many readers of this column know, “landlord myths” are items of information that many property managers, and even some attorneys, generally assume to be true, though they are actually falsehoods. As with one of my favorite television shows, MythBusters, I enjoy learning of certain myths and then tak- ing time to explore them and to examine them as to their truth or falsity. In the last issue of the ApartMentor, we explored Part 1 of the topic of dogs and restricted breed policies and liability. Time for Part 2. It’s been awhile since our last “landlord


mythbusting,” so let’s “bust” another one, shall we?


MYTH: FOR LIABILITY REASONS, DOG


BREED RESTRICTIONS ARE ABSOLUTELY NECESSARY. AFTER ALL, IF A RESIDENT IS EVER INJURED BY AN “AGGRESSIVE BREED,” THE LANDLORD WILL AUTOMAT- ICALLY BE LIABLE FOR THE INJURY. SO WE MUST DENY “AGGRESSIVE BREEDS” – EVEN IF SUCH AN ANIMAL IS PART OF A REASONABLE ACCOMMODATION RE- QUEST BY A DISABLED RESIDENT.


In Part 1 of this article, we explored the history of dog bite liability in North Carolina, culminating in the very recent N.C. Court of Appeals case, Stephens v. Covington, 754 S.E.2d 253 (Feb. 18, 2014). Placing Covington in its proper historical and legal context, the essence of the Court’s decision established that the breed of a dog is no longer an automatic path to liability, which represented a welcome return to common sense and a logical application of the N.C. Supreme Court’s earlier decision in Holcomb v. Colonial Associates, LLC, 358 N.C. 501, 597 S.E.2d 710 (2004). The net effect of these cases: the dog’s breed alone is not enough to establish liability for a landlord, unless the evidence is so heav- ily one-sided as to render the landlord without a defense. Assuming every landlord will be able to provide credible experts to claim that no particular breed is inherently dangerous, it appears doubtful that a future case will estab- lish liability purely by breed alone. Instead, the emphasis will likely be on whether the land- lord has notice of the specific dog’s dangerous behavior, not merely the breed of the dog. As


12 the ApartMentor | May/June


such, we “busted” another landlord myth – as there is no justifiable reason to deny dogs for their breed, if liability is the main concern.


LET THE PUSHBACK GAMES BEGIN! “Wait just a second, Will,” you may say.


“We sure as heck have a justifiable reason to deny dogs for their breed: our insurance carrier doesn’t allow it.” Indeed, that may be very true. After all, there are a number of insurance companies who may refuse to issue liability policy coverage (or possibly charge a significantly higher premium) to a landlord or management company, where the landlord or management company permits certain breeds of dogs – such as Pit Bulls or Rottweilers, to reside at the property. After all, the manage- ment of rental property is generally a for-profit business, and if any factor – such as the breed of particular dogs – creates an additional expense that lowers profits, it is normally reasonable to enact these restrictions and to prohibit such breeds. However, how does one handle a situa- tion in which a disabled resident requests a reasonable accommodation to permit their Pit Bull to live at the property as a companion or service animal? Should insurance restrictions on breeds matter at that point? What about the exception to reasonable accommodations where it may involve a direct threat to the health and safety of others? All great ques- tions – let’s explore those.


THE FAIR HOUSING ACT AND REASONABLE ACCOMMODATIONS – A QUICK REVIEW


As most all readers of this column already


know, landlords and management companies must comply with the Fair Housing Act, which prohibits discrimination based on a person’s race, color, sex, religion, national origin, familial status (i.e., the presence or expected presence of children under 18 years of age), and disability, which can include mental and physical disabilities. For disabled individuals, they also have the right to request a “reason- able accommodation,” an altering of certain established landlord policies that would assist the resident with their disability in the use and enjoyment of their home. The classic example of a reasonable accommodation is a blind resident’s request to a landlord to permit them to keep a seeing-eye dog in the rental home,


Land


even where there may be a strict no-pets policy in place. Given the unique training of such animals, they were often called “service animals,” since they provided a tangible service to the disabled owner.


Society and medical science are both con- tinually evolving in the recognition and treat- ment of various mental disabilities, which may include conditions as wide-ranging as clinical depression to schizophrenia to obsessive- compulsive-disorder (OCD) to perhaps even hoarding. Similarly, the need for animals to assist with disabilities has also evolved, where several court decisions have found there is no need for unique training of a service animal at all. Rather, the reasonable accommodation analysis only looks at whether the requested accommodation somehow assists the resident with their disability – even if the assistance could be in the form of emotional support only – and if so, the animal can be considered a reasonable accommodation request. This has given rise to the terms “assistance animal” or “companion animal.” Such animals do not need to be a dog at all; in theory, they could be just about anything: a cat, a guinea pig, a rabbit, a ferret, a fish, among others. However, for the purposes of this article, we will keep the conversation limited to the breeds of dogs.


BREEDS AND THE FAIR HOUSING ACT – AND DANGEROUS STUFF One interesting quirk about the Fair


Housing Act: the reasonable accommoda- tion right is not unlimited. In fact, the FHA (in this case, 42 U.S.C. § 3604(f)(9)) allows a landlord to deny a reasonable accommodation where the accommodation would constitute a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others. You can imagine how landlords and insur- ance companies naturally gravitate to this “direct threat”exception, claiming – often loudly – that certain breeds are dangerous and pose a “direct threat” to the health and safety of others. However, folks who attempt to claim such a threat is shown by breed alone are on legal thin ice. Consider the following:


• The U.S. Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) issued a joint statement on May 17, 2004 entitled Reasonable Accom-


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