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Takeaways:
- Reply promptly to requests for reasonable accommodations and follow the U.S. Department of Housing and Urban Development (HUD) guidance explaining a housing provider’s obligations with respect to both service animals and support animals under the FHA, and the distinctions between the two types of animals.
- Avoid all-encompassing blanket policies that could effectively discriminate against individuals with protected characteristics.
- If an individual’s disability is not readily apparent or known, engage in good faith dialogue and, if necessary, request reliable information verifying the disability and the need for the assistance animal in accordance with HUD guidelines. In most cases, medical records are not required—a credible statement by the individual or a reliable third party is sufficient.
- Be aware that refusing a reasonable accommodation for an animal is permitted if the animal poses a direct threat that cannot be eliminated or reduced by the individual controlling the animal.
- Recognize that communications using phrases such as “reasonable accommodation” or references to the Americans with Disabilities Act could trigger accommodation duties.
Case Update
On remand to the District Court for the Central District of California, the parties stipulated to a trial on the briefs. After considering the relevant evidence, the court granted judgment in favor of Plaintiff, ruling that Defendant failed to reasonably accommodate the applicant’s handicap. The court found the Defendant’s denial of Plaintiff’s application violated the reasonable accommodation provisions of the Fair Housing Amendments Act (“FHHA”) and California’s Fair Employment and Housing Act, and that he was negligent in breach of his duty to not discriminate in the rental of a dwelling pursuant to the FHAA.
In concluding that Plaintiff proved the Defendant reasonably should have known of Plaintiff’s disability, the court focused on the statements in both the initial lease application and follow-up email communications. The co-applicant stated the household would include “1 registered support animal,” elaborated that the animal was “a verified emotional support animal covered by the ADA as a reasonable accommodation,” and warned the Defendant that “it is illegal to discriminate against a prospective tenant based on their need for a support or service animal.” The court stated these communications led to “…only one reasonable conclusion: that someone (in this case, Plaintiff) needed the animal as a reasonable accommodation due to a handicap.” The Defendant unsuccessfully argued that the communications only allowed for speculation whether an applicant needed the animal as a reasonable accommodation due to a disability.
The Plaintiff sought an injunction compelling the Defendant to (1) adopt and implement nondiscriminatory standards in the advertisement, operation, and management of his rental properties; and (2) submit himself and his agents to fair housing training. However, the Court held that an injunction was unnecessary because there was no evidence the Defendant willfully or maliciously discriminated against Plaintiff or had a history or ongoing practice of discriminating against prospective tenants.
The court awarded $14,800 in compensatory damages based on out-of-pocket losses sustained in securing alternative housing. An appeal was filed by Defendant on April 26, 2023 and is pending.
McClendon v. Bresler, 20 CV 7758 (C.D. Cal. Mar. 30, 2023). The citation for the full opinion can be found via Westlaw at: McClendon v. Bresler, 2023 WL 2820330 (C.D. Cal. Mar. 30, 2023). [Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information.]
On December 27, 2022, the Ninth Circuit reversed a judgment in favor of the landlord in a discrimination suit brought by a prospective tenant who requested to rent Defendant’s property with a support animal. After the prospective tenant’s group application was denied, the applicant brought suit alleging disability discrimination in violation of the federal Fair Housing Act and California’s Fair Housing and Employment Act, in addition to claims of negligence. Initially dismissed, Plaintiff’s claims have been remanded back to the U.S. District Court for the Central District of California.
In July 2020, Plaintiff and two co-applicants submitted an application seeking to rent Defendant’s property. The rental advertisement included a “No Dogs” notice, however the prospective co-tenants submitted their application along with information requesting permission to include Plaintiff’s 50-lb. terrier mix named Tinkerbell, described in email as a “verified emotional support animal covered by the ADA as a reasonable accommodation.”. The landlord explained that all dogs, including service dogs, were not acceptable. The applicant did not communicate detailed information about Plaintiff’s diagnosed mental and physical impairments that qualify as disabilities under the ADA. Emails also included additional references to the Americans with Disabilities Act, however, the application was ultimately denied. Plaintiff subsequently brought suit.
The federal Fair Housing Act makes it unlawful to discriminate based on the disability status of a potential renter. Discrimination includes a refusal to make reasonable accommodations to policies when such accommodations may be necessary to afford individuals equal opportunity to use and enjoy the rental.
To prevail in a claim alleging the failure to reasonably accommodate a tenant’s disability, a plaintiff must prove the housing provider knew or reasonably should have known of plaintiff’s disability; the reasonable accommodation may be necessary to enjoy the rental; and the defendant refused to make the accommodation.
In October 2021, the District Court for the Central District of California awarded summary judgment in favor of Defendant because the correspondence providing information about Tinkerbell could not support a finding that Defendant was aware that Plaintiff suffered from a disability. The court found descriptions of the dog as a "registered" and "verified emotional support animal" established “merely an assumption” that the person being assisted by the animal suffered from a disability. (McClendon v. Bresler, 20 CV 7758, 2021 WL 6424918 (C.D. Cal. Oct. 21, 2021))
On appeal, the Ninth Circuit reversed and remanded for further proceedings, stating that knowledge of an applicant’s disability status can be actual or constructive, therefore a dispute still existed whether the emails provided enough evidence that the landlord should have known of the applicant’s disability status. The court highlighted the parties’ use of phrases such as “reasonable accommodation,” “discrimination” and “service dog” as significant evidence of potential knowledge.
Because the district court erred in granting judgment to Defendant on Plaintiff’s accommodation claims, judgment against Plaintiff’s negligence claim was also reversed because a landlord’s failure to comply with a fair housing accommodation requirement constitutes a breach of the duty not to discriminate in a housing rental. The suit was remanded to the district court for proceedings consistent with the Ninth Circuit’s opinion.
McClendon v. Bresler, 2022 WL 17958633 (9th Cir. Dec. 27, 2022).