Safer bet for a service animal

Gill Terrace Retirement Apartments v. Johnson, 2017 VT 88

By Elizabeth Kruska

Here’s a landlord-tenant case from some time ago.

Ms. Johnson was a tenant in the Gill Terrace Retirement Apartments in Ludlow. Ms. Johnson started living in her apartment in 2002. Also important to know is that part of her rent was paid with federal housing assistance.

Not sure when, but sometime after October 1, 2009, Ms. Johnson’s son moved in with her and brought his dog, Dutchess. From the sounds of things, Dutchess is a whole lot of dog. She had some aggressive behaviors, and some other tenants were afraid of her.

Ms. Johnson’s son moved out in late 2013 but left Dutchess behind. Several things happened in early 2014. First, the landlord asked Ms. Johnson about Dutchess continuing to live in the apartment. Ms. Johnson said that she had a doctor’s note recognizing her need for a support or assistance animal. She also said that she was having some medical treatments which made it hard for her to take the dog out, but that one of her kids took care of that.

January 1, 2014 also marked a change to the lease, which prohibited smoking in the apartments. After that date tenants (and visitors, I suppose) could only smoke in a designated smoking area.

In February 2014 the landlord sent a notice of termination to Ms. Johnson. There were three issues. One had to do with moving her car during snow plowing; this one isn’t addressed in the case, so we’ll leave it here. Another issue had to do with smoking in the residence. The last had to do with Dutchess’s continued presence in the apartment despite a “no-pets” policy. Ms. Johnson again said she had a doctor’s note for a dog. The landlord’s attorney delivered some paperwork for her to fill out asking for an accommodation to permit the dog, although Ms. Johnson maintains she never got the paperwork. She continued vaping in the apartment and Dutchess kept living there.

The landlord served Ms. Johnson with an eviction notice in June 2014. Ms. Johnson’s response was, at that point, to submit a request to keep Dutchess as a support animal and submitted a doctor’s note.

The landlord’s response was that it was fine for her to have a support animal, but not this support animal. The landlord pointed to Dutchess’s temperament, tenant complaints, a possible increase in insurance rates, and a police-related incident involving Dutchess.

The eviction case chugged along and Dutchess kept living in the apartment.

In April 2015 there was to be a HUD inspection (as I noted above, this apartment is partially government-funded, so these inspections happen periodically). Ms. Johnson left the landlord a message warning them not to bring anyone in because Dutchess might attack. Ms. Johnson’s son ultimately took Dutchess to the other side of the property while the inspection happened.

There was finally an eviction hearing in June 2016. Ms. Johnson testified that she took Dutchess outside to do her dog business (like, use the loo, not other business, like logistical planning for the shipment of perishables), but that due to her own medical problems didn’t think she could actually restrain Dutchess if necessary.

Perhaps unsurprisingly, the court granted the eviction, based on smoking and violation of the “no-pets” policy. 

Ms. Johnson appeals. SCOV affirms.

Under the Fair Housing Act a landlord cannot discriminate against a tenant for any reason, including disability. If a tenant needs an accommodation, the landlord needs to grant that accommodation as long as it’s reasonable. This is very fact-specific.

If there’s a “no-pets” policy, but a tenant needs a support or assistance animal due to a disability, the landlord has to provide a reasonable accommodation to permit the animal unless it would create an undue burden or fundamentally alter the nature of the services.

This doesn’t mean a tenant can have any animal. A landlord can deny an accommodation for a specific animal if: (a) the specific animal poses a threat to health or safety of others and the threat cannot be reduced or eliminated; or b) the specific animal would cause substantial physical damage to the property of others. Denial of a specific dog can’t be based on a dog’s size or breed, or on speculation that it might hurt somebody. There have to be facts to support that this particular dog meets one of the excluding criteria above.

From the description, Dutchess isn’t the right dog for this job. She lunges at people, bares her teeth, and rears up on her back legs. Even Ms. Johnson said she didn’t think she could control the dog. Other residents were afraid of Dutchess. The landlord said it would be fine for Ms. Johnson to have an assistance dog, but not this dog.

Ms. Johnson also argued that the court erred in not finding that an accommodation could be made for Dutchess to stay. But SCOV credits trial court testimony and findings that Ms. Johnson did what she could to contain Dutchess and it wasn’t working.

SCOV, although sympathetic to Ms. Johnson and her attachment to Dutchess, affirms on the dog-related violation. SCOV doesn’t address the smoking violation, as the dog violation is sufficient to affirm.