Pit Bulls Find Shelter in Fair Housing Act Against Breed Restriction Laws
Just because municipal bans are being lifted on pit bulls and other dogs perceived as dangerous doesn’t mean multifamily landlords are happy allowing these animals in their community.
Concerns over permitting feared breeds or those that have made headlines for dangerous behavior – specifically pit bulls – at apartments has heightened in recent years. Landlords who fear liability issues have especially raised questions about allowing such animals that provide service or assistance to disabled residents or applicants, or amended pet policies to restrict them altogether on the property.
Breed restriction laws gradually being lifted
Cities are slowly lifting bans that have kept pit bulls at bay in some cases for more than two decades. Townships in Michigan and Kansas have recently wiped out sanctions, and one Colorado city is talking about tossing a 25-year code.
Regardless of whether a city keeps a ban or dismisses one, landlords will likely hold steady on scrutinizing the animals when a resident or applicant requests to bring one on property, says a California Fair Housing attorney who hears the steady drumbeat of concern from clients.
“I do not think (the bans) will have any effect on owner’s pet policies,” said Lynn Dover of Kimball, Tirey & St. John, LLP. “I think those who ban pit bulls and other ‘dangerous breeds’ will do so whether there is a city ordinance in place or not. And unfortunately, some residents will try and get around those bans by producing verification of disability and disability-related need for an assistive animal.”
As April’s Fair Housing Month approached, the firm, which specializes in multifamily law, issued a reminder to clients about the Department of Housing and Urban Development’s (HUD) and Department of Justice’s joint statement issued last year on assistance animals for people with disabilities. The statement confirmed that assistance animals aren’t pets and that breed, size, and weight limitations may not be scrutinized when determining whether an animal should be accepted as an assistance animal. Instead, each animal should be individually considered.
Service animal exemption requests on the rise
Landlords and policies are being challenged more and more by residents who claim their animal is needed for service or assistance and request an exemption to no-pet policies, Dover says. Landlords frequently report that residents or applicants present documentation that appears to support that an animal is qualified to provide service or assistance to a resident, who may or may not have a disability. Typically, the paperwork comes from one of the Internet service animal registries that offer official-looking service animal apparel and documentation for a fee.
Many times the animal in question is a pit bull, Dover said.
“There is an increase in people going onto a website and paying to get these certifications and other documents. We seem to be getting at least as many, if not more, inquiries then we’ve had in the past,” Dover said.
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Clients, she said, are often confused about what defines a service animal and whether companion animals should be considered pets. Many are also unsure what kind of documentation is acceptable for the animals to be allowed.
It’s important for multifamily professionals to realize that trained service and companion animals are types of assistive animals and fall under Fair Housing rules. Denying a resident either of these could ultimately lead to potential fair housing liability.
Determining disability is key to service animal exemption
Kimball, Tirey & St. John often gets inquiries about what residents have to prove for an animal to be accepted under the FHA.
The ultimate determining factor is not whether the animal is classified for service or assistance, rather whether the resident or applicant is disabled and needs the animal because of the disability. Dover said that landlords can require written verification that the resident is disabled and has a disability-related need for the animal.
However, landlords can’t ask about the nature or extent of the disability. They can ask for verification that the person meets the definition of disability under relevant fair housing laws.
Official-looking documents, capes, collars and badges don’t prove that the person is disabled and has a disability-related need for an assistive animal.
“Sometimes managers get scared because they don’t want to be accused of Fair Housing violations,” Dover said. “But I think it’s important for housing providers to recognize that these types of documents are not a valid form of verification and they are entitled to verification of disability and disability-related need for the animal, unless it’s apparent.”
Property pit bull bans require burden of proof
With regard to pit bulls, landlords must prove that allowing pit bulls, or any other breed for that matter, as assistive animals pose an undue financial or administrative burden in order to legally keep them off the property.
And just because the current insurance provider – which also has fair housing responsibilities to the extent of insuring housing – denies coverage is not enough for landlords to refuse the animals. A landlord is expected to ask their insurance carrier to make an accommodation for a disability-related situation.
In the event the carrier doesn’t make an accommodation, the burden is on the landlord to seek alternative insurance from a carrier that will make an accommodation for disability. If no comparable insurance provider can be found, only then can a landlord have a valid defense that allowing a pit bull is an undue burden, Dover said.
At the same time, landlords would need to battle city hall over a municipal ban if a resident or applicant proved a disability and disability-related need for a pit bull or any other banned animal.
“If a city had a pit bull ban, I think a landlord would have a responsibility to request the city to waive the ban when a resident wanted to have a pit bull as an assistive animal,” Dover said. “Cities cannot take away rights given by the federal or state government, and cities also have fair housing responsibilities.”
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