What Did the Property Owner Know?

Service animal case points up the importance of clear communication between housing providers and tenants.
Service dog in train car

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Editor's Note: After publication of this story, we discovered an update in the court proceedings. On March 30, 2023, the 9th Circuit District Court awarded $14,800 in damages to the plaintiff, Ashley McClendon, finding that the defendant reasonably should have known of McClendon's disability based on the communications between the defendant and co-applicant [McClendon v. Bresler, 20 CV 7758 (C.D. Cal. Mar. 30, 2023)].

McClendon v. Bresler, 2022 WL 17958633, (9th Cir. Dec. 27, 2022)

The use of service animals has been one of the most contentious fair housing issues in recent years, mainly because of the growing use of animals in emotional-support situations. One case—involving a housing provider who said he didn’t allow dogs, regardless of whether they were service animals—was recently sent back to district court by the U.S. Court of Appeals for the Ninth Circuit. At issue: whether language by an applicant that implies a disability constitutes the requisite evidence to make a housing provider aware the applicant actually has a disability.

The case: In July 2020, Ashley McClendon and Sarah Gailey applied to rent Peter Bresler’s property. Bresler’s rental advertisement included a “no dogs” policy. Nonetheless, Gailey asked for permission to bring McClendon’s support animal, a 50-pound terrier mix named Tinkerbell. In an email, Bresler said the dog’s size was a problem.

Although communications between Bresler and Gailey didn’t detail McClendon’s mental and physical impairments, Gailey said Tinkerbell was a “verified support animal.” Her emails also referenced the Americans with Disabilities Act and noted the animal’s presence would be a “reasonable accommodation.” After Bresler denied the application, McClendon sued under the Fair Housing Act and California’s Fair Employment and Housing Act, alleging disability discrimination and negligence.

The U.S. District Court for the Central District of California initially awarded summary judgment to Bresler, noting the email correspondence didn’t indicate Bresler was aware McClendon had a disability. The court found descriptions of the dog as a registered and verified support animal merely amounted to assumption. McClendon appealed.

The ruling: The Ninth Circuit overturned the lower court ruling, noting that a prospective tenant “who requests accommodation[s] for a service animal need not affirmatively identify his or her disability to trigger [Fair Housing Act] protection.” Statements like “I have a therapy animal” or “I have an assistance dog” should reasonably alert a housing provider, the court said. The suit has been remanded to the district court for a ruling on whether Bresler should have known of McClendon’s disability status. The appeals court highlighted the applicants’ use of phrases such as “reasonable accommodation,” “discrimination” and “service dog” as potential evidence. The appeals court also reversed the judgment dismissing negligence claims. In the pending case, the plaintiff will have to prove Bresler reasonably should have known of her disability; a reasonable accommodation is necessary for her to enjoy the rental; and the defendant refused to accommodate her.

The takeaway: Discrimination based on disability status includes refusing to make reasonable accommodations so all tenants have equal opportunity to use the rental, so:

  • Avoid blanket policies that could discriminate against those with protected characteristics.
  • Pay attention to phrases like “reasonable accommodation” or references to the Americans with Disabilities Act, which could trigger duties to accommodate.
  • Make sure to reasonably accommodate a prospective tenant.

Learn about HUD’s 2020 guidance on assistance animals in this Window to the Law video.