Companion Animals: An Evolving Area of the Law (Part 2)

Last month we outlined the topic of companion animals and covered some key concepts.  This month, we take a hard look at how courts rule on companion animal issues, and how you can use these rulings as an analytical framework for your decision making. 

While not agreeing on the final answer, most, if not all, courts agree on one key point.  There has to be a nexus (link or relationship) between the animal and the resident’s disability.  Under this test, if there is no apparent link, you can safely deny the request.  For example, you could deny a request by a resident who suffered from depression for a Seeing Eye Dog.  Unfortunately, the nexus test has been of little practical value in guiding property managers when it comes to companion animal issues.

The problem with the nexus test is that the courts do not agree on the level of proof necessary to pass the test.  On one end of the spectrum (arguably most favorable to residents), courts have held that any evidence of companionship and mental health necessity are sufficient to demonstrate that the animal lessens the effects of the tenant’s disability. This is not a very high hurdle for the resident to clear. Furthermore, the animal need not have any special training. Under this rationale, you would have to grant any request based on mental disability and a doctor’s note that the animal makes the resident feel better.  Because this is by far the most common request, you would have to grant almost all companion animal requests.

On the other end of the spectrum (arguably most favorable to property managers), courts have adopted a more stringent test.  These courts have held that the resident must show that the requested animal will specifically lessen the effects of the disability.  A general doctor’s note is not sufficient.  The resident needs a statement from a doctor specifically trained in the area of disability claimed by the resident.    Further, where the primary disability is emotional, the animal must be peculiarly suited (trained) to ameliorate (lessen) the unique problems of the mentally disabled.  Under this test, courts have specifically rejected the “dogs give unconditional love which makes people feel better” thinking.  Under this test, you would be able to decline almost all companion animal requests.

Although the courts may disagree, the DOJ and HUD have made it clear that they do not accept the more stringent test.  After the property manager won in state court under the stringent test, the DOJ on behalf of HUD came after the property manager at the first opportunity based on a new “emotional support animal case” at the property.  This case was settled.  While certainly not legal precedent, the terms of the settlement probably provide the clearest indication of HUD’s and the DOJ’s legal position on companion animals, therapeutic animals, or emotional support animals.  This position appears to be in between the two far extremes adopted by the courts.

Based on the DOJ’s settlement with a property manager in a companion animal case, the rules for companion animal cases would be as follows. In the case of an emotional support animal, the need for an animal be documented by a statement from a licensed mental health professional indicating, 1) that the applicant has a mental or emotional disability, and 2) that the designated animal would ameliorate the effects of the disability.  A “licensed mental health professional” means a person licensed by a public regulatory authority to provide therapy or counseling to persons with mental or emotional disabilities.

However, these rules do not address the example above to circumvent breed restrictions.  To address this specific issue, further analysis is needed.  For discussion purposes, let’s change the facts a little, and assume that the resident obtained the required documentation from a licensed mental health professional.  Thus, the resident has now shown disability and need.  But disability and need are not always conclusive.  The resident’s request must be reasonable on balance.  This reasonability requirement has been recognized by both the DOJ and by at least one court.

In a very similar case involving a pit bull and a resident with AIDS, the court found for the property manger.  The property manager had argued that having a pit bull in the building constituted a nuisance and created a substantial interference with the comfort, safety or enjoyment of the landlord and tenants in the building.  The court reached this conclusion after hearing expert testimony about pit bulls in general, and the particular pit bull in question.  It’s important to note in this case that the community did not say no dog.  The community just said no pit bull.

The DOJ also recognized that requests must be reasonable in its settlement of the case discussed above.  The settlement, while allowing emotional support animals, specifically provided that the animal not constitute a threat to the safety of others. Rottweilers have been restricted for a reason.  Rottweilers have been restricted because they constitute a threat to the safety of others.  In fact, the pit bull case above was decided shortly after two rottweilers mauled a San Francisco woman to death.  Accordingly, based on the overall state of the law on companion animals, you are within your rights to deny a request for a companion animal which is a vicious breed such as a pit bull or a rottweiler.  As with any request for a reasonable accommodation, if you deny the request, you must attempt to establish a dialog with the resident to explore other possible accommodations.

While legally defensible, denying such a request is not without risks.  There is no guarantee that the resident won’t sue or file a fair housing complaint.  Even if you prevail, this costs time and money, and of course is not very pleasant.  Further, the outcome of the case may come down to dueling experts.  One experts will say rottweilers are very friendly.  Others will say rottweilers are very dangerous.  As attorneys, we like the odds of a judge or jury exercising some common sense and finding that rottweilers are in fact a danger to other residents.  But until such time some legal precedent gets established in Colorado, you will not know the outcome of any given case until the ruling is issued in that case. 

If you have companion animal questions or scenarios, you would like to discuss, please do not hesitate to contact us.

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