The Fair Housing Act (FHA) states that housing providers may not “discriminate against any person in the terms, conditions, or privileges of . . . rental of a dwelling . . . because of a handicap of any person associated with that person.” 42 U.S.C. § 3604(f)(2)(C). Prohibited discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Id. § 3604(f)(3)(B). “The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133, 1136 (N.D. Cal. 2000) (quotation omitted).
If a landlord has a “no-pets policy,” a tenant will be provided a reasonable accommodation for an assistance animal if the tenant can demonstrate that he or she is disabled and that the tenant has a disability-related need for the assistance animal. However, a specific service animal denial may occur if: (i) the animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. However, the denial may not be based on a dog’s breed or size, mere speculation or fear that the animal may harm someone or damage property, or evidence of damage caused by other animals.
The Federal Housing Administration (FHA) construes the law very favorably toward any individual that alleges a need for an emotional support animal. A medical professional attestation that the individual meets the FHA disability definition for having an emotional support animal, regardless of how they obtained the diagnosis, is sufficient: (i) physical or mental impairment (including emotional or mental illness) that substantially limits one or more major life activities; (ii) record of such impairment; or (iii) having such impairment.
In the recent Vermont Supreme Court case of Gill Terrace Retirement Apartments, Inc. v. Johnson, (2017) VT 88 No. 2016-372, the Court addressed these specific type of situations. The Johnson case involved a tenant eviction for violation of a “no-smoking” and “no pets” policy. Despite the landlord’s approval of Johnson’s request for an assistance animal as a reasonable accommodation, it did not approve her specific animal because of the dog’s hostility, complaints from other residents, and tenant’s inability to restrain the dog. The Trial Court, in granting the eviction, concurred with the landlord and held that while an individual is entitled to an Emotional Support Animal, they are not entitled to any animal or bread that (i) exhibits aggressive behavior or tendencies; or (ii) scares other tenants or occupants (some “residents deliberately stayed indoors to avoid” the dog). Johnson ultimately appealed her eviction for violation of the pet policy all the way to the Vermont Supreme Court which upheld the Trial Court.
