DOES BITING LEAD TO EVICTION?

QUESTION: One owner’s dog bit and injured another owner’s dog in the elevator.

The owner of the injured dog says the other dog should be evicted. But the owner of the dog biter claims that the dog is an “emotional support animal” for which the owner needs an accommodation under the Fair Housing Act. How should our association handle this?

ANSWER: This is a bit complicated, but perhaps not as complicated as you might assume.  A Fair Housing accommodation is a legal requirement.  Even if associations bar pets generally, they must allow those who meet the requirements for emotional support (or assistance) animals.  But they can impose reasonable restrictions on them, and prohibiting the animals from harming other residents or their pets would certainly be reasonable. 

Generally speaking, boards should deal with an aggressive comfort animal as they would with any aggressive pet, although the potential for a Fair Housing discrimination suit dictates a somewhat more cautious and deliberate response. 

The first step with any biting incident like this one is to collect information from both dog owners – and from witnesses, if any – to determine exactly what happened.

Did the aggressor bite the other dog for no reason or did the other dog do something – snarl, nip, smirk ꟷ to provoke the attack?  Is this the first time the biter has behaved aggressively, or have there been other complaints of aggressive behavior – other indications that the dog might bite, even if it has never done so?  The answers to these questions will inform the board’s response.

If the dog has been a perfect angel for five years, has never done anything like this before, then a graduated response is appropriate. 

A violation notice and perhaps a fine, with a warning that additional violations will incur stricter penalties that could include requiring the dog’s removal from the community would be in order. 

The board can be patient, but not endlessly so. Dogs shouldn’t be allowed two bites of an apple – or of an owner or of an owner’s dog. You don’t have to wait for this dog to bite again before imposing some reasonable restrictions on it. The board could require the owner to transport the dog only when the elevator is empty, to keep the dog on a leash (which should be a requirement for all dogs), or to maintain a specified distance from other animals and residents. You might also require the owner to muzzle the dog when it is in common areas. The board must obey the Fair Housing Act, but it also has an obligation to protect the safety of other residents – and their pets.

While ordering the removal of a dog shouldn’t usually be the first response to a first offense, it may be necessary, at some point, if you are dealing with repeat (biting) offenders or with animals that regularly frighten or disturb other residents.

The board can establish reasonable rules governing the behavior of pets and their owners, and comfort animals should be subject to those rules.  Requiring owners to vaccinate their pets and clean up after them, and prohibiting behaviors, such as incessant barking, that constitute a “nuisance,” would all qualify as reasonable.

The board has the authority to evict any animal, including an emotional support animal, that violates the rules, but eviction will almost certainly require a court order, because few owners will willingly relinquish their pets. 

And the burden will be on the association to prove that the animal poses a threat or creates a nuisance that justifies its removal. 

For that reason, the board should document all complaints about the animal and the board’s responses to them. That general advice applies to all problematic pets. But if you are dealing with an emotional support or assistance animal, you will want to demonstrate not only that the board has been reasonable and fair, but that it has made good faith and even exceptional efforts to find solutions that would allow the owner to keep the animal he/she needs.

If you have questions or concerns on aggressive pet behavior or pet violations, please contact Matthew Gaines.