No Accommodation for Aggressive Pet

Read the full decision: Gill Terrace Ret. Apartments, Inc. v. Johnson

Vermont’s highest court affirms trial court ruling that landlord did not have to accommodate tenant’s request for a support animal because the animal in question had exhibited aggressive behavior.

A tenant (“Tenant”) received an eviction notice for violating two provisions in her lease: the lease’s “no-smoking” policy and “no-pets” policy. The “no-pets” provision prohibited residents from having pets unless the landlord (“Landlord”) consented or the tenant qualified for a reasonable accommodation because of a disability.

In 2009, the Tenant’s son moved with his dog Dutchess into the Tenant’s apartment. While Dutchess never attacked another person or animal, she barked and lunged at people as well as other dogs. Dutchess’s aggressive behavior caused other residents to stay in their apartments if they knew Dutchess was outdoors.

In 2013, the Tenant’s son moved out but Dutchess remained with the Tenant. In 2014, the Landlord questioned the Tenant about Dutchess. The Tenant explained that she needed Dutchess as a support animal for her disability, but failed to provide a doctor’s note. After the Landlord served the Tenant with an eviction notice, the Tenant provided a note from a health professional that stated the Tenant needed a pet to help relieve her anxiety.

The Landlord approved the Tenant’s request for an accommodation, but did not approve Dutchess as the specific animal because of the dog’s aggressive behavior and complaints from other residents about the dog’s behavior. During the eviction hearing, the judge agreed with the Landlord that the Tenant was entitled to an accommodation but was not entitled to keep Dutchess due to the dog’s behavior. Because the Tenant had violated the terms of the lease, the judge granted the Landlord’s request to terminate the lease. The Tenant appealed the judge’s order.

The Supreme Court of Vermont affirmed the lower court’s ruling that the Landlord’s duty to provide a reasonable accommodation to the Tenant did not extend to Dutchess. The federal Fair Housing Act (“FHA”) prohibits handicap discrimination by landlords against tenants and may require accommodations by the landlords for the tenant’s disability. Such accommodation requests may include a “no-pets” policy or similar restrictions on the types of animals that residents may have in their housing units. A reasonable request for reasonable accommodation to a housing provider must meet the following criteria:

  1. The person making the request must have a disability, which is a physical or mental impairment that substantially limits one or more major life activities; and
  2. The person has a disability-related need for the assistance animal.

To learn more, visit “ Accomodations for Service Animals in Housing .”

However, even if a tenant demonstrates the need for an accommodation, the accommodation request can be denied in two instances: 1) the specific animal poses a direct threat to the health or safety of others; or 2) the specific assistance animal in question would cause substantial physical damage to the property of others. This determination is fact specific and cannot be based on factors such as the dog’s breed.

The court upheld the lower court. The Tenant argued that the lower court had erred by not considering ways to mitigate any potential harm caused by Dutchess. The court rejected the Tenant’s argument, finding that the evidence supported the finding that Dutchess posed a potential threat to the safety of the residents. The court also noted that the Tenant had attempted to mitigate the risks posed by Dutchess such as only allowing Dutchess outside for limited times each day but these attempts had not altered Dutchess’s behavior. Therefore, the court affirmed the lower court ruling that the Landlord did not have to make an accommodation for Dutchess in the Tenant’s apartment.

Gill Terrace Ret. Apartments, Inc. v. Johnson, 2017 VT 88, 2017 WL 4453007 (Vt. Oct. 6, 2017). [This is a citation to a Westlaw document. 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.]