Every owner and manager of a housing development understands (or should understand) that disabled applicants and residents have the right to request that properties be modified (reasonable modifications) or that rules be changed or waived (reasonable accommodations) so that the disabled person has an equal opportunity to use and enjoy the housing. However, the law does not require that every request for an accommodation be granted. Requests may be denied if there is no need for the requested accommodation or if granting the request would impose an undue financial and administrative burden on the property or fundamentally alter how the property operates.
In order to demonstrate that an owner has violated fair housing law by failing to grant an accommodation request, an applicant or resident must prove that:
- The request for a reasonable accommodation was made by or on behalf of an individual with a disability;
- The community knew – or was aware of – the disability (owners may verify disabilities that are not obvious);
- The request was necessary for the disabled individual to have an equal opportunity to enjoy the housing (i.e., there is an identifiable connection between the requested accommodation and the disability);
- The request was reasonable (owners should remember that even when a request is determined to be “unreasonable,” the community should engage in an interactive process that examines alternative accommodations that would meet the needs of the disabled person and that are reasonable); and
- The community denied the request.
While owners often believe that any requested accommodation must be granted, this is not the case, as illustrated by a number of recent court cases. In this series of articles, I will examine court cases that have ruled against residents for requested accommodations relating to assistance animals, noise complaints, and smoking. This first article deals with the issue of whether a community has to permit a resident to keep a dangerous assistance animal.
Borenstein v. Nellis Gardens, Nevada, May 2019
This case makes it clear that dangerous animals do not have to be permitted as assistance animals if there is proof that the animal presents a direct threat to other residents.
Facts of the Case
- A resident had a service dog and lived in the community for several years with no issues.
- The dog died, and the resident obtained another service dog of the same breed.
- The community provided evidence that the replacement dog lunged at residents, chased children and dogs, and bit at least one other dog.
- The resident refused requests to muzzle the dog.
- The community started eviction proceedings due to the resident’s failure to control the dog, and the state court ordered eviction of the tenant.
- The resident then filed suit in federal court.
- Based on the resident’s allegations that the community was evicting him because of the service dog, the court granted a temporary hold on the eviction pending a hearing.
- The court ordered the resident to muzzle the dog until the hearing.
- The resident did not comply with the court order and admitted that he took the dog outside without a muzzle.
- The federal court ruled in favor of the community.
- According to the court, the community had initiated the eviction proceedings because of his failure to control the new dog – not due to the resident’s disability or his use of a service animal.
- It was not reasonable to require the community to accommodate a service animal that displayed aggressive and dangerous behavior toward other residents.
This case reiterates what other similar cases have shown – under fair housing law, communities may deny a request for an assistance animal if the specific animal would pose a direct threat to the health and safety of others – or would cause substantial physical damage to the property of others, and the risk cannot be reduced or eliminated by another reasonable accommodation.
The next article in this series will cover a case that answers the question as to whether a community has to soundproof a unit due to a claim of excess noise.