Q: A tenant who is qualified to rent an apartment has asked us to allow her to bring her service dog, which is a pit bull mix. We aren’t arguing over whether she is legally disabled, and we would normally allow the service animal on the property, even though we have a "no pets" policy. But our insurance policy forbids pit bulls, and if we allow one to live here, we risk cancellation or higher premiums. We don’t want to be slapped with a fair housing lawsuit, either. What should we do? –Henry H.
A: You’re on the right track by realizing that when a disabled tenant’s reasonable request runs up against a policy or rule of yours, you need to consider adjusting that policy in order to accommodate the tenant. But your duty to accommodate isn’t absolute — if the tenant’s request would result in an undue financial or administrative burden on your business, you may decline to make the accommodation.
Before deciding whether to allow the dog on the property, get all the facts straight. Contact your insurance carrier directly and ask for written substantiation of their response should you allow a pit bull to live in the rental. Ask them to waive this policy in light of the request from a disabled tenant. Find out whether comparable insurance coverage, without dog breed restrictions, exists on the market, and how much it would cost to switch. Make your decision based on what you learn — if your carrier won’t budge, and alternate coverage is prohibitively expensive, you may be able to legally deny the request. On the other hand, if there’s a reasonable workaround, you ought to consider it.
If your insurance carrier holds firm on its policy, you might be wondering — isn’t the company obligated to make an accommodation for housing that has service animals, by relaxing its "no pit bulls" condition when the pit bull is a service animal? It would be interesting to see what the U.S. Department of Justice, which enforces the federal fair housing laws, would have to say about an insurance carrier that has a policy of refusing to insure any housing that has pit bulls, without exception for assistance animals. If you decide to accommodate your tenant and run into problems with your carrier, you might consider raising this issue with your local HUD regional office.
Q: I have a problem with the time our building lights go on and off, particularly the lights in the enclosed stairwells. In the morning, I have to use a flashlight until at least 7:30, because the lights have gone off at 6 a.m. This has been an ongoing problem with the landlord, and I was wondering if you can suggest a good and effective way to handle this once and for all. –Janice G.
A: It’s a shame your landlord has chosen to cut corners like this. Any security expert you talk to will tell you that the simplest, most effective way to deter crime, besides appropriate locks, is to have effective lighting in the right places. Your landlord probably doesn’t realize that precisely because lighting is so easy and relatively cheap, failure to implement it will increase the chances that he’ll be found responsible if a criminal incident or injury occurs that might have been prevented had there been good lights.
You can take several steps to educate your landlord. First, point out your landlord’s heightened risk of liability, as explained above. Then, involve the rest of the tenants — get together and draft a polite letter to the landlord, explaining the situation and setting forth what you want. This letter will be "Exhibit A" in the hands of your lawyer if, heaven forbid, you or another tenant is assaulted or trips and falls on the stairs in the dark, for it will prove that the landlord was on notice of the problem. Next, ask your local police department to come by and conduct a security evaluation, and ask for written findings and recommendations. Present these to the landlord — by this time, maybe he’ll get the picture.
Q: I have a question about renting to tenants with Section 8 vouchers. I’ve always thought that participation was voluntary. But my city has passed an ordinance making it illegal to refuse to rent to someone on account of their "source of income." Does this mean I’ll have to accept Section 8 applicants? –Richard R.
A: In the Section 8 program, the tenant pays part of the rent, and the public housing agency, or PHA, pays you the rest, which it gets from the federal government (HUD).You’re not alone in wanting to avoid having the government (the PHA) as your tenant, so to speak, perhaps for some of the following reasons: Your property will have to meet minimum standards and pass inspection, and you’ll need to use the Section 8 addendum for your lease, which you can’t amend. If the PHA stops assisting the tenant, the lease will terminate, without notice to you; if the PHA loses its contract with HUD, the lease will terminate; and if the PHA doesn’t pay its portion of the rent, you can’t terminate for nonpayment of rent, as you could with a standard nonpaying tenant.
So much for the burdens — let’s get to the answer. Your ordinance forbids discrimination based on "source of income," but what does that phrase mean? If it refers only to the way a person earns money, it might not be broad enough include Section 8 recipients, because their vouchers aren’t earned. This would mean that you could refuse to participate. But if your ordinance defines "source of income" as any lawful manner of support, it could include Section 8 tenants. In that case, you’d be violating the law if you turned away a prospect with a voucher simply because you don’t want to deal with Section 8.
Let’s assume your ordinance protects those with any lawful manner of support. Courts in New Jersey, Connecticut, Massachusetts and Maryland have all ruled that as long as "source of income" includes any lawful source of income, their states or individual cities are free to essentially require that landlords take Section 8 tenants (assuming the tenants are otherwise qualified). New York has said the same for landlords with rent-stabilized units. These courts haven’t bought the theory that the hassles mentioned above are unduly burdensome — to be so, they’d have to interfere unconstitutionally with landlords’ property rights, which is a pretty high standard. Nor have landlords fared any better when arguing that because the federal law did not make participation obligatory, any mandatory state or local law is illegal. On the contrary, the cases say, the federal scheme gave the states and cities the option of requiring participation.
Aside from the legal fine points, it would be a mistake to automatically decide that any Section 8 tenant will be a disaster. Remember that these tenants must be otherwise qualified under your standards, including minimum income, good credit and positive references (and you are expressly forbidden from renting to applicants with specified criminal backgrounds). You will have the right to terminate the lease if you choose (after a year), and you will not have to take every qualified Section 8 applicant. If the PHA fails to pay up, you’ll get a late fee, and it’s not very common for PHAs to fall behind in rent payments. Lots of landlords rent to Section 8 tenants for years, with no bad experiences. Check with other landlords in your area and find out what it’s like to deal with the local PHA.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
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