Judgment Reversed Against Applicant with Service Dog

Applicant’s references to the dog as service animal raised question whether landlord knew of disability.


  • Follow the U.S. Department of Housing and Urban Development (HUD) guidance explaining a housing provider’s obligations with respect to service animals under the FHA.
  • Avoid all-encompassing blanket policies that could effectively discriminate against individuals with protected characteristics.
  • Failing to reasonably accommodate could lead to fair housing liability if the request may be necessary to afford the tenant an opportunity to enjoy the property.
  • Communications using phrases such as “reasonable accommodation” or references to the Americans with Disabilities Act could trigger accommodation duties.

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 service 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 support animal, a 50-lb. terrier mix named Tinkerbell. In email correspondence, 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; however it was communicated to the landlord that Tinkerbell was a “verified support animal.” Emails also included references to the Americans with Disabilities Act and the animal’s presence as a “reasonable accommodation.” The application was ultimately denied, and 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 support animal established “merely an assumption” that the person being assisted by the animal suffered from a disability. 

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 has been 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).


Additional Resources

Americans With Disabilities Act (ADA)

The Americans With Disabilities Act (ADA) makes it unlawful to discriminate against people with disabilities. It is applicable to real estate brokers.