by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
FAIR HOUSING; DISABILITIES ACT; PROCEDURE: As the Fair Housing Act has not defined what constitutes "reasonable accomodation," the issue is not normally a question of law, and the jury must decide if a landlord has made proper accommodations to tenants with disabilities. Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995). Landlord had a no pets policy and refused to allow deaf tenants to have what they alleged to be a "hearing" dog. Tenants brought suit, alleging violation of Fair Housing Act as amended (FHAA) which bars discrimination against any person in the terms, conditions and privileges of a dwelling because of a handicap of the renter.
Discrimination includes a refusal to make reasonable accommodations in rules, policies, practices or services when such may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
The trial court instructed the jury that it was not discriminatory or unreasonable for a landlord to require a tenant wishing to keep a "hearing" dog to show the landlord training credentials from a school and to accept liability for sanitation and for damages caused by the dog.
The jury ruled for Landlord. Seventh Circuit remanded for retrial because jury instructions implied that, as a matter of law, a dog without school training cannot be a reasonable accomodation. FHAA does not set forth any guidance as to what accommodations are considered reasonable and the determination of such must be entrusted to the jury.
Comment: The editor's checks with lawyers who work in this area reveals that pets are a becoming a major challenge under the Disabilities Act and related housing laws. When is a pet a required "accomodation?" See HUD v. Riverbay, HUD-ALJ 02-93-0320 (9/8/94) 1994 Prent. Hall Fair Housing-Fair Lending Par. 25,735. (Tenant with schizoid personality has right to compel landlord to accomodate her dependency on a dog companion.)
The problem, of course, is differentiating between the legitimate cases in which pets are truly therapeutically necessary and those cases in which the tenant just likes pets. Although, as the instant case demonstrates, there may be problems of proof, one D.C. area housing manager was able to convince the local human rights commission that "reasonable accomodation" did not preclude the landlord from making a home visit to be certain that the alleged "hearing dog" was in fact capable of performing and actually performing the tasks the tenant argued justified keeping the dog on premises.
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