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Oras v. The Housing Authority of the City of Bayonne

373 N.J. Super. 302, 861 A.2d 194 (App. Div. 2004)

LANDLORD-TENANT; FAIR HOUSING; DISCRIMINATION—If a person needing a handicapped accessible apartment first needs to complete an application, the landlord must tell that person, and whether an assistance pet must be allowed in an apartment is to be determined by a cost-benefit balancing analysis based on the respective needs of the landlord and tenant.

A paraplegic man sued a local housing authority claiming that it had discriminated against him in violation of the federal Fair Housing Act (Act) and the New Jersey Law Against Discrimination (LAD). He alleged that the housing authority did not provide him with a handicap-accessible apartment and did not allow him to keep his dog to assist him with his daily activities. The Act provides that an aggrieved person may sue for relief from a discriminatory housing practice in connection with the rental of a premises. Discriminatory housing practices include a refusal to make reasonable accommodations when such may be necessary to provide one with an equal opportunity to use and enjoy a dwelling. The LAD prohibits a public entity from discriminating based on a tenant’s disability. Its regulations state that no person may refuse to rent to a person with a disability who is accompanied by a guide or service animal. The lower court granted the housing authority’s motion for summary judgment, concluding that the authority did not discriminate because the man had failed to submit an application to enroll in the low-income-housing program. Submitting an application was a precondition to become a tenant.

On appeal, the Appellate Division agreed that the man did not file the application, but concluded that this was not dispositive. The man was claiming that the authority’s representative had promised him a handicap-accessible apartment before he signed a lease. Another of the authority’s representatives was aware of the man’s request for a handicap-accessible apartment, had received letters from the man’s doctors, and had acknowledged the man’s request in writing. The Court concluded that, if a handicap-accessible unit was available and if the man was required to complete an application to obtain the unit, the authority should have told him to complete the application. Accordingly its failure to do so would be a failure to reasonably accommodate his disability. The Court took note that the lower court had not addressed this issue. For this reason, the Court reinstated the man’s complaint as to his allegation that he was not provided a handicap-accessible unit and remanded the matter for further proceedings.

As to the man’s claim that the authority failed to reasonably accommodate his dog, the authority’s pet policy limited the weight of a dog to twenty pounds. The man’s dog weighed forty-seven pounds. The lower court concluded that the man’s claim that the authority had forced him to remove his dog was barred because of his breach of the lease. The Appellate Division disagreed, finding that the lower court had made a finding of a disputed fact: that the man was aware of the pet policy, even though he denied it. Therefore, the Court concluded that this was inappropriate for summary judgment. Regardless, even if the man was aware of the pet policy, the Court found that this did not mean that he would be prevented from keeping a pet in his apartment if he needed it to accommodate his disability. Despite the pet policy, both federal and State regulations required the authority to accommodate the man’s disability to the extent necessary. The Court concluded that a landlord cannot relieve itself of its duties under the regulations by having a tenant waive his right to reasonable accommodation in a lease.

The Appellate Division found that a fact-sensitive inquiry was required to determine whether the pet was of sufficient assistance to the man as to require the landlord to relax a pet policy so as to reasonably accommodate the tenant’s disability. For this reason, the Court remanded the matter for further proceedings. On remand, the man would be required to prove that his requested accommodation was necessary to give him an equal opportunity to use and enjoy his apartment. Some factors to be considered would include the extent that the man’s ability to function was facilitated by the accommodation, the training that the dog received, and the authority’s existing policy of allowing tenants to have dogs, as long as they are under a certain weight. The Court found that whether the man would be allowed to keep the dog would require a cost-benefit balancing, taking both parties’ needs into account.

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