Fair Housing Attorney Q&A

by Daniel Paz, the Paz Law Firm

Over the course of my career, I have received various fair housing questions from my clients.  In this column, I will address the most recent fair housing questions that I have received.

  1. We have a tenant that is wanting to terminate its lease early without penalty. The tenant lives on the second floor and recently suffered an injury that has confined the tenant to a wheelchair.  We generally require a tenant who terminates its lease early to pay a reletting fee and rent for the remainder of the lease term.  Are we required to let the tenant terminate its lease without paying the reletting fee or the rent for the remainder of the lease term?

The tenant’s request to terminate the lease early in this situation would be a request for a reasonable accommodation.  A reasonable accommodation is a change in rules, policies, practices, or services that is necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling under the Fair Housing Act.  In this case, the fact that the tenant is now confined to a wheelchair establishes that the tenant has a disability.  Thus, the question becomes whether allowing the tenant to terminate the lease early without paying the reletting fee or the rent remainder of the lease term is a change in your rules, policies, practices, or services that is necessary to afford a person with a disability the equal opportunity to use and enjoy the apartment.  At first glance, the answer is “no” because the tenant is not asking to use or enjoy the apartment, but rather wants to vacate the apartment.  However, the answer is not so clear-cut.  To determine whether the request constitutes a reasonable accommodation, you must evaluate the request, as you must with any reasonable accommodation request, on a case-by-case basis to determine if it is reasonable.  If the accommodation would result in an undue burden or would substantially alter the terms of the agreement, it would not be reasonable.  When considering whether the request is reasonable, you will want to consider if and when you will be able to re-let the apartment, whether any particular characteristic makes the apartment more or less desirable, the remaining months on the lease, the size of your business, and your overall financial resources.  You will want to determine if there are any other alternative accommodations such as allowing the tenant to transfer to a first-floor unit that would work for both parties.  If there are no alternative accommodations available and the request is reasonable, then “yes” the tenant would be able to terminate the lease early without paying the reletting fee or the rent for the remainder of the lease term.

  1. We have a tenant whose emotional support animal attacked another resident. The attack resulted in injuries to the other resident.  What are we allowed to do to address the situation?

An emotional support animal must adhere to the same animal rules as any other animal.  So, while you are not able to charge a tenant a pet deposit or pet rent for having an emotional support animal, you are able to enforce your animal rules against a tenant with an emotional support animal.  This would include the ability to enforce your lease rights in this situation.  If your lease or animal addendum, which they should, prohibit an animal from disturbing other residents, injuring others on property, or otherwise acting in an aggressive manner towards other people, you can enforce your contractual rights in this case.  You could give the tenant a lease violation notice.  You could give the tenant a notice to vacate and start the eviction process.  The fact that the animal is an emotional support animal is not a defense in an eviction action.  Or you could ask the tenant to remove the emotional support animal from the property.  In a situation where the attack has resulted in injuries, an eviction action would be the recommended course of action.  An eviction based on these grounds would require that have an attorney with you in court.  However, whatever course of action you do decide to take, the course of action needs to be consistent with how you handle situations involving non-emotional support animals.  If your course of action is not consistent, then you could be violating the Fair Housing Act.

  1. We just completed a property inspection and discovered considerable damage to the property caused by the tenant’s emotional support animal. Are we allowed to charge the tenant for the damages caused by its emotional support animal?

A tenant will be responsible for damages caused by its emotional support animal if the damages are beyond normal wear and tear.  Just like the previous question, emotional support animals are held to the same rules as non-emotional support animals.  If you charge tenants for damages beyond normal wear and tear caused by non-emotional support animals, you can likewise charge tenants for damages beyond normal wear and tear caused by emotional support animals.  The burden will be on you to show that the damages caused were beyond normal wear and tear and that the amounts charged for the damages were reasonable.  This can be accomplished by taking pictures and/or videos of the property damages and having written documentation of the charges for the damages, such as receipts or invoices for goods purchased or services provided.  So, while you will not have a pet deposit to offset against the damages, you do have the right to offset the tenant’s general security deposit against the damages.  And if the general security deposit is not sufficient to cover the damages, you can make a demand on the tenant to pay the shortfall.  If the tenant does not pay for the damages, then you can refer the account to collections or file a lawsuit for the balance due.

The information in this column is for informational purposes only, and I hope that you find it helpful.  If you have any questions about fair housing laws, I encourage you to seek legal advice.

Daniel Paz, The Paz Law Firm, is an AATC member attorney. For any questions about the information in this article, you can contact him at daniel@thepazlawfirm.com.