It seems as though the laws regarding Fair Housing are rapidly eclipsing any other law, rule, or contract that otherwise governs the relationship between a landlord and their tenant. While we won’t spend time today discussing the potential property rights violations associated with the enormous set of laws and regulations under which a landlord must now operate (see our list of past articles for more on that subject), we’d instead like to specifically focus on a recent expansion of those regulations that may be a bit harder to understand: the requirements on a landlord when facing a reasonable accommodation request that includes a dangerous animal.
Many of you have already heard about (or faced) accommodation requests for birds, gerbils, farm animals, etc. And, up until now, perhaps you’ve considered such unusual requests, just as such, unusual. However, historically, you were at least left with the assurance that a dangerous animal on your property was not an option, often adopting such limitations in your reasonable accommodations policy.
Unfortunately, as of April 25, 2013, per written notice from HUD, such limitations are no longer allowed. In what I can only describe as a further erosion of a landlord’s rights to operate their property as they see fit, HUD has eliminated a landlord’s ability to restrict certain breeds of animals from their property – even if required to do so by their liability insurance provider.
In the past, we have most often seen a challenge to the breed restriction where a designated, violent dog breed is concerned. Nonetheless, in its April Notice, HUD has said that the breed of the dog can no longer be considered, only the specific animal’s nature. Tenants may now circumvent your accommodations policy by submitting a reasonable accommodation request to have the animal on the premises if it is considered an assistance animal.
Luckily for landlords, this request may be denied (after a proper evaluation of other applicable criteria) if:
- the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
- the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
However, remember, breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
So, what does this really mean?
- First, if you have breed, size, and weight limitations in your general pet policy, when someone makes an accommodation request for an animal that violates those limitations, you cannot deny the request simply because the animal violates those policy limits.
- Second, you can only deny the properly-made and substantiated request if you assess the specific assistance animal and use objective evidence of the specific animal’s actual conduct to show it is dangerous.
The first part is really easy. You cannot deny the request because lions are known to be ferocious. It’s the second part that really defines HUD’s position. While no one has defined exactly what method of assessment you could employ to actually obtain objective evidence of the danger of such an animal, we read HUD’s decision (at its simplest level) to mean that until the animal in question actually harms someone, you may not deny the requested accommodation just to ensure everyone else’s safety. And even then, when the animal has harmed someone, you cannot deny the request if you can reduce or eliminate future harm to others through another reasonable accommodation.
Time will only tell how this decision will play out in the real world. However, at this early stage, it certainly looks like another example of lawmakers implementing new rules and regulations without having first taken a good look at the people and the communities that will ultimately be impacted.
Quick Tip:
Knowing your audience is the key to successful communication.
Communication is central to our business and personal lives, and we sometimes take for granted that the recipient of our communication understands (and is interested in) what we are passing along, requesting, or demanding. Unfortunately, that is not always the case. A key first step to effective communication – to making sure your message is heard – is knowing your audience – thinking about with or to whom you’re communicating, and from where they’re coming, before you engage in the communication.
Now, this quick tip is not intended as a guide to change the goal or objective of your communication; rather, it is intended to help you consider the importance of your audience (in many instances, your tenants) when molding how you present your message – ensuring you obtain the comprehension and commitment you desire.
Sometimes, the key can be as simple as identifying the topic of the communication to the other person, and asking questions to determine their level of understanding about the subject. However, it is not enough to ask a question, you must continually remind yourself of the answer as you move into communicating your message.
For example, at the 2013 National Apartment Association (“NAA”) Education Conference and Exposition, I attended a session on revenue management software, attended by management company representatives – many of whom had already taken the step to incorporate revenue management data into their budgeting software and processes. The presenters started strong –asking how many people in the audience used revenue management software (about half). Feeling confident that they now understood their audience, they launched into their presentation.
While the presentation was made up of admittedly dry material, the presenters worked hard to explain not only how to handle the data itself, but also how that data can be integrated into various budget processes. It was powerful material. However, the presentation was filled with acronyms and other finance-related shorthand, which made their otherwise excellent presentation fuzzy for many of the listeners. Remember, roughly half of the audience did not use revenue management software, and may not have been familiar with some of its key data points or terms.
The breakdown in communication became embarrassingly apparent when the first post-presentation question asked simply whether the presenters had been talking about using budget software in conjunction with the revenue management software. Obviously, as described above, the answer was “yes” – it was indeed the central point of the session. You could visibly see the discomfort of the presenters as they realized that their message had not been heard or understood by many in the crowd.
Resident communication is critical to your operational success. If you are considering an upcoming resident communication, take the time to ensure that you have considered your audience and are confident that your message will achieve the desired comprehension and commitment you desire.
Quick Tip:
Handling dangerous animal accommodation requests.
Now that we’ve reviewed HUD’s position on accommodating dangerous animals, what can we do about it? Here are some practical steps you can take to aid in getting these dangerous animals off your property, even in the face of a reasonable accommodation request:
- If you allow pets on the property, maintain meticulous records of any incidents that occur on the premises, even the little ones. If there are multiple pets in the unit, you might consider keeping these records animal-specific so that reviewing them will be easier in the future.
- If you don’t allow pets on the property, address unwanted animals immediately, before they turn into the topic of an accommodation request. Take legal action if necessary so that everyone knows you are serious about the policy.
- Request veterinarian / medical records of any incidents associated with the animal, even if the victim of the incident was another animal.
- Amend your pet policy to include a provision (if it doesn’t have one already) that requires your residents to report any incidents concerning their animals on or off the premises. Just because the animals harmed someone at the park, doesn’t mean you shouldn’t know about it.
If you get a proper accommodation request for a potentially dangerous animal, spend some time investigating the animal. While you can’t ask much about the owner, there is no limit to what you can ask about the animal (at least for now).
Quick Tip:
Congratulations to 2013 Paragon Award winners.
At the 2013 National Apartment Association (“NAA”) Education Conference and Exposition, two clients received the prestigious Paragon Award for their respective communities as models of excellence. Congratulations to:
- Lincoln Property Company and Metro Marina Bay in Quincy, MA for winning the Best Community, 5-20 Years (under 150 units) category, and to
- Beacon Residential Management for The Homes at Old Colony in Boston, MA winning the Best Community, Specialty Housing – Affordable category.
Metro Marina Bay reflects Lincoln’s new take on luxury living “where the city meets the shore” and residents enjoy both access to downtown Boston and the marina. This six-story midrise is a pet-friendly community, and includes studio, one-, and two-bedroom apartments with terrific views of Boston and the Bay. Among its valued amenities are the year-round gas fire pit in the courtyard, shuttle service to the nearby train station, billiards room, and dry cleaning services. Management achieved corporate accolades by winning Lincoln’s “highest occupancy” award in the 4th Quarter of 2012 and “best collections” in the 3rd and 4th Quarters of 2011.
Consistent with previous multi-phase redevelopment projects of former public housing complexes, The Homes at Old Colony is Beacon’s first phase of redeveloping the Old Colony public housing complex in South Boston, which originally was built in the 1940s. Of particular note, all five of the residential buildings and the new, 10,000 square feet Joseph M. Tierney Learning Center are LEED-certified. Beacon’s commitment to strong resident services in its communities continues with a dedicated department focused on a six-week healthy eating course, a basketball clinic for kids with supplies from the Boston Police Department, regular BINGO nights, elder coffee hours, and youth job-assistance programs. Since initial lease-up in 2011, management has maintained 100{b3839be935df112798d4ec5997aa1a27aa9a9725854b075bcbd0000f0c7f06fc} occupancy of all five buildings.
We wish Lincoln and Beacon all the best with both their award winning properties as well as the other communities in their portfolios in CT and beyond.
DISCLAIMER:
The reading of this newsletter does not form an attorney-client relationship. The contents of this newsletter are for informational purposes only and do not constitute legal advice. Nothing in this newsletter is intended to imply or predict the outcome of any legal matter that you may be considering or be involved in. The Landlord Law Firm makes no warranties of any kind regarding the information contained in this newsletter.