{"id":22747,"date":"2023-09-27T15:11:20","date_gmt":"2023-09-27T15:11:20","guid":{"rendered":"https:\/\/www.anthonydidonato.net\/wordpress\/?p=22747"},"modified":"2023-09-27T15:11:21","modified_gmt":"2023-09-27T15:11:21","slug":"what-did-the-property-owner-know","status":"publish","type":"post","link":"http:\/\/www.anthonydidonato.net\/wordpress\/what-did-the-property-owner-know\/","title":{"rendered":"What Did the Property Owner Know?"},"content":{"rendered":"\n

Service animal case points up the importance of clear communication between housing providers and tenants.<\/p>\n\n\n\n

Editor’s Note: <\/strong>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(link is external)<\/a> (C.D. Cal. Mar. 30, 2023)].<\/em><\/p>\n\n\n\n

McClendon v. Bresler, 2022 WL 17958633, (9th Cir. Dec. 27, 2022)<\/em><\/p>\n\n\n\n

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\u2014involving a housing provider who said he didn\u2019t allow dogs, regardless of whether they were service animals\u2014was 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.<\/p>\n\n\n\n

The case:<\/strong> In July 2020, Ashley McClendon and Sarah Gailey applied to rent Peter Bresler\u2019s property. Bresler\u2019s rental advertisement included a \u201cno dogs\u201d policy. Nonetheless, Gailey asked for permission to bring McClendon\u2019s support animal, a 50-pound terrier mix named Tinkerbell. In an email, Bresler said the dog\u2019s size was a problem.<\/p>\n\n\n\n

Although communications between Bresler and Gailey didn\u2019t detail McClendon\u2019s mental and physical impairments, Gailey said Tinkerbell was a \u201cverified support animal.\u201d Her emails also referenced the Americans with Disabilities Act and noted the animal\u2019s presence would be a \u201creasonable accommodation.\u201d After Bresler denied the application, McClendon sued under the Fair Housing Act and California\u2019s Fair Employment and Housing Act, alleging disability discrimination and negligence.<\/p>\n\n\n\n

The U.S. District Court for the Central District of California initially awarded summary judgment to Bresler, noting the email correspondence didn\u2019t 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.<\/p>\n\n\n\n

The ruling:<\/strong> The Ninth Circuit overturned the lower court ruling, noting that a prospective tenant \u201cwho requests accommodation[s] for a service animal need not affirmatively identify his or her disability to trigger [Fair Housing Act] protection.\u201d Statements like \u201cI have a therapy animal\u201d or \u201cI have an assistance dog\u201d 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\u2019s disability status. The appeals court highlighted the applicants\u2019 use of phrases such as \u201creasonable accommodation,\u201d \u201cdiscrimination\u201d and \u201cservice dog\u201d 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.<\/p>\n\n\n\n

The takeaway:<\/strong> Discrimination based on disability status includes refusing to make reasonable accommodations so all tenants have equal opportunity to use the rental, so:<\/p>\n\n\n\n