modations under the Fair Housing Act (“Joint Statement”). The Joint Statement stated that any analysis of a direct threat must rely on an individualized assessment that is based on reliable, objective evidence, considering (1) the nature, duration, and severity of the risk of injury, (2) the probability that injury will actually occur, and (3) whether there are any reasonable accommodations that will eliminate the direct threat. Breed analysis is, at best, a generalized assessment, not an individualized one. Put another way, the DOJ and HUD Joint Statement looks for direct threat analysis on a case-by-case basis. A breed restriction fails this test.
• Landlords and management companies may be tempted to suggest that the resident could be assisted by another breed of dog more to the landlord’s liking – and the FHA does permit a landlord to suggest, in some circumstances, a good-faith alternative ac- commodation that meets the resident’s needs. However, consider this analysis from Page 7 of the May 17, 2004 Joint Statement, which should be a warning to landlords not to push this idea too far: “There may be instances where a provider believes that . . . there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the provider should discuss with the individual if she is willing to accept the alternative ac- commodation. However, providers should be aware that persons with disabilities typically have the most accurate knowledge about the functional limitations posed by their disability, and an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accom- modation is reasonable.” (emphasis added). • HUD’s April 23, 2013 Statement entitled
Service Animals and Assistance Animals for People with Disabilities in Housing and HUD– Funded Programs, states it very directly and bluntly: “Breed, size, and weight limita- tions may not be applied to an assistance animal.” This principle was discussed, and embraced as authoritative, by the recent U.S. District Court case of Sabal Palm Condomini- ums of Pine Island Ridge Ass’n, Inc. v. Fischer, --- F.Su
pp.2d ----, 2014 WL 1092361 (S.D.Fla., decided March 19, 2014).
Given the above, breed restrictions simply do not trump a reasonable accommodation re- quest. If a disabled person requests a restricted breed as a reasonable accommodation, and if the need for the animal is either obvious or can be verified by a third party, then the breed
INSURANCE COMPANIES: NOT SO FAST, FOLKS. Let’s not forget the insurance companies. You know – the ones that may object to the pres- ence of the restricted breed (owned by the dis- abled person) and that may threaten to cancel or non-renew the insurance policy or attempt to raise premiums on the landlords as a result? They may want to consider re-thinking that strategy, because they may be fair game under the Fair Housing Act as well, if it is revealed that their no-restricted-breeds-ever policy neg- atively impacts the ability of a landlord to rent to disabled residents. Consider this damning discussion of the intersection of insurance and the FHA, as presented by the Court in Home Quest Mortg. LLC v. American Family Mut. Ins. Co., 340 F.Su
pp.2d 1177 (D.Kan.,2004):
“The court also rejects the American Family defendants’ categorical argument that the FHA does not apply to the business of insurance. This argument has been widely rejected with respect to § 3604 [Author’s note: Fair Housing Act] claims. See Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1355–60 (6th Cir.1995); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 297–301 (7th Cir.1992); Wai v. Allstate Ins. Co., 75 F.Su
pp.2d 1, 5–8 (D.D.C.1999); Lindsey v. Allstate Ins. Co., 34 F.Su
pp.2d 636, 641–43 (W.D.Tenn.1999). In the only case from the Courts of Appeals to have reached a contrary result, Mackey v. Nationwide Ins. Companies, 724 F.2d 419, 423–25 (4th Cir.1984), has been superseded by regulations promul- gated by the Department of Housing and Urban Development as explained in National Fair Housing Alliance, Inc. v. Prudential Insurance Co. of America, 208 F.Su
pp.2d 46, 55–57 (D.D.C.2002).”
A similar conclusion was reached in a Con- necticut Superior Court case (Francia v. Mount Vernon Fire Ins. Co., 2012 WL 1088544 (Conn. Super.,2012)) dealing with subsidized rent- als, which was protected under Connecticut’s fair housing laws. The Court noted that the relevant portion of the federal FHA, 42 U.S.C. § 3604(f)(2), makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap ...” (emphasis added). The sale of insurance would be considered a “service in
MORE TO COME . . .
I hope you enjoyed this article and that this information will empower you to make better, more informed decisions in managing your communities. Stay tuned to future issues of the ApartMentor, where we will discuss and review other landlord issues.
AUTHOR’S NOTE: The information contained in this article should not be construed as specif- ic legal advice for your exact situation. Before acting on any information contained in this article or should you have any questions about the issues raised in this article, you should first consult with your attorney. Also, Landlord Lawyer is not meant as a replacement for your own best business judgment. A “legal answer” may not always be the “best” answer for you or your communities, and we applaud and celebrate any creative solution to a problem that avoids litigation, reduces your exposure to risk, encourages positive relationships with your residents, and improves your bottom line.
the ApartMentor | May/June 13
restriction cannot be used as a basis to deny the reasonable accommodation.
connection with such a dwelling,” and thus come under the coverage of the FHA.
THE BOTTOM LINE As discussed in Parts 1 and 2 of this article, the dog breed myth is a powerful one, encom- passing far-reaching issues of liability and fair housing. Naturally, the stereotype of the so- called “dangerous breed” of dog provokes fear and concern, with varying images of aggressive dogs injuring people – or in the extreme case, even causing death. Business owners naturally want to avoid being on the news as the land- lord who “allowed” this to happen. However, as we discussed, one must step away from the emotion of the topic and view it with a more logical eye, and instead ask the questions that must be asked: (1) Am I liable if there is a dog injury?
GENERALLY NO, unless you had notice of specific prior acts of the dog and failed to take action (letter demanding removal, eviction, etc.) to remove the dog. (2) Do I have to permit a disabled resident to have a restricted breed as a requested form of accommodation? YES, because HUD itself has said so, and most courts would likely defer to its opinion. (3) But what if my insurance carrier threatens to cancel my policy or raise rates because I allowed a disabled resident to have a restricted breed? DON’T PANIC; instead, threaten to report them to HUD for a Fair Housing Act violation – that ought to wake them up, and perhaps you can shop rates with a different insurance carrier.
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