Recent Cases Involving Companion Animals/Landlord/Tenant
Peter C. Kratcoski, Esq.
Tom Kremic, Researcher
A recent local case has brought with it significant implications on a developing area of law. U.S. v. Kent State University deals with a couple who lived in a university owned apartment. The wife was diagnosed with anxiety and panic disorder because she would experience panic attacks when she was alone. These attacks were so severe that that they substantially impaired her ability to breathe, study, learn, and complete basic daily functions. As part of her treatment her psychologist suggested that she get a dog for the apartment. The problem was that Kent State University has a strict no pet policy. The only exceptions to the policy are fish and service animals specifically trained to benefit an individual with a physical or mental disability, but not therapy, support, comfort, or any untrained assistance animals. Kent never did allow the couple to have a dog and soon after the couple moved out. What followed was a law suit by the U.S. Department of Housing and Urban Development against Kent State to enforce Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §3601-3619.
When looking at case law regarding companion animal housing there are a few factors the courts place special emphasis when determining whether the person has a right to have an animal. The courts will make sure that the person is legitimately disabled; either physically, mentally, or emotionally. The courts will then look for evidence that the animal makes a real difference for the person’s disability, helping them live a more regular life. If there is a benefit the court will then look to see if there are reasonable alternatives that will provide the same benefit to the person as an animal. If allowing the animal still makes sense, the court will decide if the animal places an undue burden on landlord or supervisory group. If after this analysis the pros of the animal to the person outweigh the cons to others the court will likely allow the companion animal. Because of the developing nature of this area of law these cases are very fact specific and the courts have a lot of room to make judgments based upon how well a party is able to address these issues.
DOES THE PERSON HAVE A DISABILITY?
When considering physical disabilities the courts generally don’t make such a fuss over whether or not the person is disabled, but when it comes to emotional and mental disabilities the courts will want to know, and will permit landlords to ask, to what extent the person is really disabled. If a person is simply lonely or unhappy they do not have much of a chance of succeeding here. Letters from doctors or other experts detailing the person’s disabilities are extremely beneficial because of the relative nature of these disabilities. Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1247 (D. Haw. 2003) aff’d sub nom. DuBois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006) is a particularly applicable case. In this case two plaintiffs, Prindable and DuBois, were roommates suing the condominium association where they were living, alleging handicapped discrimination under the Fair Housing Act. One of the issues brought up was the extent of the plaintiffs’ disability. According to Dubois, his doctor, “recommended that Dubois be allowed to keep a dog to “cope with the stress, poor sleep patterns[ and] problematic aliments resulting from trauma from an earlier assault.” The court determined there was really no evidence that Dubois was handicapped under the meaning of § 3602(h). Prindable on the other hand had been in treatment for depression and his doctor recommended that among other things, a pet companion would be beneficial to Prindable. The court determined that there was evidence that Prindable was handicapped and the defendants had knowledge of the same.
DOES THE ANIMAL REALLY HELP WITH THE DISABILITY?
A really important factor in these cases is always what the animal actually does to help their owner with regards to the specific disability. In some cases the animal is certified or specially trained and these cases are usually pretty clear cut. Unfortunately when it comes to companion animals there is no such system and so to be successful in court, the disabled person must be able to show that their animal is more than just a pet, the animal must serve a purpose with regards to their disability. Courts have established some standards that can help determine what level of usefulness the animal must achieve in order to qualify.
“The accommodation must facilitate a disabled individual’s ability to function, and it must survive a cost-benefit balancing that takes both parties’ needs into account. On one side of the equation is the degree to which Pierre (the dog) aids the plaintiffs in coping with their disability. Professional credentials may be part of that sum; they are not its sine qua non.” Bronk v. Ineichen, 54 F.3d 425, 431 (7th Cir. 1995)
This case opened up the possibility of companion animals qualifying as a reasonable accommodation under the Civil Rights Act.
In cases where there is a clear physical disability it can be easier to prove that the animal qualifies, but the standard still applies. In case of a deaf individual the court ignored the fact that the dog was not certified because there was evidence to show that the dog was able to help the deaf individual.
“…dog alerted son to knocks at the door and to the sounding of the smoke alarm. HACC’s belief that such assistance was not sufficient to qualify the dog as a service animal is irrelevant.” Green v. Hous. Auth. of Clackamas Cty., 994 F. Supp. 1253, 1257 (D. Or. 1998)
With specific regards to a companion animal, courts have made it clear that the animal cannot just be a pet. There must be a clear nexus between the animal and the disability. This can be a little harder to show with emotional disabilities, but being able to quantify the benefits the animal provides might be the key to success in this type of case.
“Nason has not shown a substantial likelihood of proving that maintaining possession of the cat is necessary due to her handicap. In order to succeed in her claim… …Nason needed to provide evidence which would show a clear nexus between MS and the need to maintain the cat.” Nason v. Stone Hill Realty Ass’n, No. 961591, 1996 WL 1186942, at *3 (Mass. Super. May 6, 1996)
Specifically in Ohio, courts have ruled that certain animals can qualify as emotional support animals.
“In sum, this Court concludes that the types of animals that can qualify as reasonable accommodations under the FHA include emotional support animals” Overlook Mut. Homes, Inc. v. Spencer, 666 F. Supp. 2d 850, 861 (S.D. Ohio 2009)
In U.S. v. Kent State University the wife’s doctor described how the dog would knock her out of panic attacks and even said that her anxiety had been reduced by about 50% since getting the dog and the frequency of the panic attacks had also been reduced. Evidence like this shows the court that the animal is more than just a pet; it serves a medically justifiable purpose.
ARE THERE REASONABLE ALTERNATIVES TO HAVING AN ANIMAL?
Even if a plaintiff is disabled and a companion animal is able to assist the disabled person, other reasonable alternatives might eliminate the need for an assistance animal. In cases of a deaf individual there are systems like flashing light that can alert the individual to something like a phone or doorbell. Other options that could be viable for people with other types of disabilities, especially for the emotionally disabled are medication, therapy, and counseling. If one of these helps alleviate the symptoms of the disability it could be considered a reasonable alternative to an animal. In some cases the court has found that service animals can go beyond these alternatives to help their owners, and in these situations they are usually permitted.
“flashing lights do not provide the accommodation for Jeremy that the dog did. Particularly, the strobe smoke alarm was of no benefit to Jeremy because he does not wake up when a light flashes. The dog alerted Jeremy to the telephone ringing, but the strobe lights installed by the defendant cannot do that; the dog alerted Jeremy to cars in the driveway, which the lights cannot do; the dog alerted Jeremy to knocks on the door and the smoke alarm no matter where he was in the house.” Green v. Hous. Auth. of Clackamas Cty., 994 F. Supp. 1253, 1256 (D. Or. 1998)
While the court will look at alternatives they won’t necessarily forbid a companion animal just because an alternative exists. Instead the court will look at the alternatives and try to determine if having the animal really makes sense when all the alternatives are considered. For example a cat may be an alternative to keeping a large dog, but if the disabled person has a relationship with the dog and would be forced to give up the dog the cat may not be a reasonable alternative at all. The cost benefit analysis is really important here. The court is probably not going to make a person try all sorts’ alternatives if a doctor thinks a dog is the best option and the harm to others is almost nonexistent. On the other hand, if the defendant shows that an animal would be a nuisance the alternatives suddenly become more reasonable.
IS THE BURDEN PLACED ON THE LANDLORD REASONABLE?
A final and really practical consideration is often brought up. What is the burden on the landlord, association, or supervisor that is arguing against the animal? Case law has held that a landlord can be held responsible for damages caused by animals that were housed on the property owned by the landlord. What if someone is bitten? What if the dog is constantly barking late at night? What if the landlord owns an apartment and there are lots of small children that would be scared of a large dog? What about unpleasant odors that can be a nuisance to other residents? The courts will look at these questions and others like them when deciding these cases. This is really a cost benefit analysis that the court is doing to determine if the benefit of a companion/service animal to the owner outweighs the cost to others. In a case like this obviously people with more serious disabilities and more “family friendly” animals will come out ahead of those with minor disabilities and more volatile animals because it is so hard to show that they have a greater benefit to their owners, then the damage and nuisance they can cause to others. When looking at this issue considering some compromise to help balance the costs with the benefits might be advantageous. If a person needs a dog for emotional reasons the court might be more inclined to permit a person getting a certain breed of dog that is small and typically docile instead of larger more aggressive animal that may bark, bite, or cause more damage and odor to the property. Cats might also be considered less volatile then dogs in certain environments. This is one area where a person can really show some “good faith” to show the court they are trying to be cooperative. Especially when a person is looking to get a new animal rather than bring in an existing one, choosing something small and docile animal can show that the person is trying to use some common sense and be reasonable rather than just obnoxious. In fact, in certain cases this may be a way to avoid the court system all together.
When it comes to the companion animal housing issues there is still a lot of room for the courts to make decisions, but it is becoming clear that the courts are beginning to recognize the therapeutic, companion, and emotional benefits of animals on people with emotional disabilities. In U.S. v. Kent State University the court sided with the Plaintiff and agreed that a dog that was not a trained service animal was still covered by the Civil Rights Act. Because of evidence from the wife’s doctor about her disability and the significant benefits the dog offered to her, and because getting a dog was the option recommended by her doctor and it posed no significant burden on the landlord the court sided with the Plaintiff against Kent State.
This case gives other people in Ohio with emotional disabilities some traction when trying to get a companion animal into their homes and apartments as a reasonable accommodation. Landlords will need to be more careful about dismissing these types of claims and we may see much less restrictions with regards to companion animals in the future.