Not So Fast On Your “No Pets” Policy

Many landlords enforce a “no pets” policy in their rental units – and for good reason. Pets can be destructive, frighten other tenants, and increase landlords’ liability exposure. Such a policy, however, can be discriminatory to those with disabilities. While most landlords understand their obligation to make an exception for service animals, not all know what to do when a tenant requests to keep an emotional support animal (“ESA”) in their unit.

The Fair Housing Act prohibits discriminatory practices in connection with virtually all forms of private residential housing, whether for sale or rent. 42 U.S.C. 3603(a); see also KRS 344.360. It is important to note that the Act prohibits discrimination in a wide variety of actions, such as advertising, new design, or zoning. Discrimination under the Fair Housing Act also includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling. 42 U.S.C. §3604(f)(3)(B); see also KRS 344.360(11)(b). If a person is physically impaired (or, has a record of impairment or is regarded as having an impairment) and has a trained service dog to perform a major life task that he or she struggles to perform on their own, the Fair Housing Amendments Act of 1988 requires the landlord to make a reasonable accommodation to their policies.[1]

Similarly, the Fair Housing Act’s reasonable accommodation requirements also include ESAs under appropriate circumstances. The request for ESA’s, unlike requests for trained service dogs, is relatively new.[2] There are unique perils when dealing with ESAs and landlords should always proceed with caution if a request has been made. Whereas a tenant’s physical disabilities can be readily apparent, the same is not the case with emotional disabilities. Landlords can, and should, ask the person seeking the accommodation to provide documentation that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. While what qualifies as an acceptable source of such documentation has not been clearly established, documentation provided by physicians, psychiatrists, social workers or other mental health professionals has been deemed sufficient to warrant the allowance of an ESA as a reasonable accommodation.[3] However, existing case law makes clear that for a reasonable accommodation to be made, the tenant must demonstrate a relationship between his or her ability to function and the companionship of the animal.[4]

Importantly, according to the Americans with Disabilities Act, only a dog that is individually trained to do work or perform tasks for those with disabilities can be labeled a service dog. However, there are currently no similar provisions in the Americans with Disabilities Act, the Federal Housing Act, or in state regulations on what types of animals can serve as an ESA; a tenant could potentially rely on a snake or a pig as his or her ESA, and with proper documentation, could be legally entitled to keep the pet in his or her residential unit in accordance with the Fair Housing Act. Further, while service dogs must undergo specific training (which often makes them less problematic from a landlord’s perspective), there currently is no such requirement for ESAs.

Pet policies can curb some of the problems that landlords routinely encounter, but if applied uniformly without exception when a reasonable request has been made by a disabled tenant, it may lead to an even bigger problem: a discrimination claim. In addition to a general statement that the landlord will not discriminate against tenants or prospective tenants based on race, color, religion, sex, familial status, disability, or national origin, landlords should include language in their pet policies to reassure individuals with disabilities that an exception (i.e., a reasonable accommodation) will be made if appropriate under the Fair Housing Act and other applicable law.

[1] The Rehabilitation Act of 1973 and Title II of the ADA may also protect a tenant’s right to reasonable accommodation in some instances (i.e., if the housing is public or federally subsidized).

[2] ESAs are defined in the Fair Housing Act (1988) as those animals that belong to a person who is emotionally or psychologically disabled. It was not until a September 2010 Department of Justice ruling that the distinction was made between a “service animal” and ESA for purposes of the ADA.

[3] See Office of Fair Housing and Equal Employment Notice 2013-01 (April 25, 2013).

[4] See, e.g., Housing Authority of the City of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (Conn. Super. Ct. Jan. 14, 1997); Crossroads Apartments v. LeBoo, 578 N.Y.S.2d 1004 (City Court of Rochester, N.Y. 1991).

BYates

Brendan Yates joined the Lexington office of the firm as an associate in 2002. Brendan is a member of the firm’s Litigation Department, where he focuses his practice on construction and real estate litigation, workers’ compensation defense litigation, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky. He can be reached at byates@mmlk.com or (859) 231-8780, ext. 208.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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What Does the Board of Adjustment Do?

In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning category . Boards of adjustment have the power to grant dimensional variances, which are deviations from the dimensional requirements of a zoning ordinance pertaining to height, width, location of structures, or setbacks. For example, if a property owner wants to build or extend a structure within the required side, front or rear yard, she can appeal to the board to request permission to build closer to the property line. Applicants for a variance must show a need for the variance and that they are not unnecessarily trying to circumvent the zoning regulations. An unusually shaped lot or other unique physical characteristics of the particular property that make it hard to comply with the setback or height requirements are typically justifications for a variance. In one Kentucky case, the appellate court found that it was appropriate to grant a variance to allow building a house closer to the street because there was a sinkhole in the rear yard that prevented building the house farther back. When a board grants a variance it must make certain statutorily required findings of fact. Variances run with the land, so subsequent owners acquire the benefit without further approvals.

Boards of adjustment also have the power to grant conditional uses. Conditional uses are those that are not allowed by right in the zone, but may be approved by the board if there is evidence that the use is suitable for the particular property. Typically, conditions are attached to a permit that ensures that the proposed use will be compatible with the area. For example, a conditional use permit that approves pilates or yoga classes in a private residential home may include conditions limiting the number of students or times of classes. A conditional use that allows live music, perhaps for a nightclub, may include limits on outdoor music or speakers.

Another function of boards of adjustment is to decide administrative appeals. For example, if a property owner applies for a building permit or a certificate of occupancy for a particular use and the permit is denied, the owner can appeal to the board on the basis that the official made an error or misinterpreted the law. The board has the power to overturn the building or zoning official’s decision and order the permit to be issued.   Another type of administrative appeal is when a property owner wants to change one type of legal nonconforming use to another . A legal nonconforming use is one that has been ongoing on the property and was once legal in that zoning category, but the zoning regulations subsequently changed to prohibit it.   In appeals that involve the changing nonconforming uses the board must determine that the new use is as intensive or less intensive than the previous use. If the change of use is approved the property owner does not need to obtain a zone change to engage in the proposed use.

Board of adjustment matters are considered due process proceedings.   Notice letters are sent to neighboring property owners, and they have a right to attend the hearing and speak. Many local regulations also require the posting of a sign to give notice of the hearing. A legal advertisement appears in the local newspaper as well. Because neighbors are given notice, it is always a good idea to talk to them in advance of the hearing to discuss any concerns they may have about the proposal prior to the hearing.

 

CWestover

 

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Lenders: Are You Using Electronic Signatures?

Earlier this year, the Federal Housing Administration (“FHA”) announced that they would begin accepting electronic signatures on documents associated with mortgage loans. FHA already allows e-signatures on some third party documents, outside of the lender’s control. The announcement, which became effective immediately, expanded the documents for which e-signatures are acceptable and now includes:

(1)    Any documents associated with servicing or loss mitigation;

(2)    Any documents associated with the filing of a claim for FHA insurance benefits;

(3)    The HUD Real Estate Owned Sales Contract and related addenda; and,

(4)    All documents included in the case binder for mortgage insurance except the Note.

Starting December 31, 2014, FHA will also accept e-signatures on the Note for forward mortgages, but not Home Equity Conversion Mortgages.

Lenders who have decided to rely on e-signatures must be sure that they are in compliance with the Electronic Signature in Global and National Commerce Act (“ESIGN”). In addition, authentication systems should be in place that can confirm that a signature may be attributed to the purported signer and lenders should take steps to confirm the signer’s identity as a party to the transaction. There must also be record retention controls in place that are consistent with the retention policies of ink-signed documentation.

Hopefully, the acceptance of e-signatures will reduce mortgage origination costs and streamline document submission processes for both lenders and borrowers. The move is just a part of the overall initiative to make the home buying process easier for consumers (see what the Consumer Financial Protection Bureau is doing here).

By now, lenders should have had time to review their technological capabilities and update their policies and procedures on e-signatures. If you are a lender and have not done so, consider how accepting e-signatures can improve your processes and efficiency. If you have questions about FHA’s announcement or about regulations to which you must adhere, such as ESIGN, contact a McBrayer real estate attorney today.

CRichardson

Christopher A. Richardson is an associate at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Louisville, KY office. Mr. Richardson concentrates primarily in real estate, where he is experienced in residential and commercial closing transactions, landlord/tenant relations, and mortgage lien enforcement/foreclosure. Mr. Richardson has closed innumerable secondary market and portfolio residential real estate transactions and his commercial practice ranges from short-term collateralized financing and construction lending to development revolving lines of credit. He can be reached at 502-327-5400 or crichardson@mmlk.com.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Pipeline Still Pushing Through, But Without Eminent Domain Power

According to a ruling issued last week by Judge Phillip Shepherd from Franklin Circuit Court, The Bluegrass Pipeline Co. cannot use eminent domain and condemnation to take private property for construction of a natural gas liquid (“NGL”) pipeline through Kentucky. Details about the Bluegrass Pipeline and the company’s efforts to secure easements were shared earlier on this blog.

Kentuckians United to Restrain Eminent Domain, or “KURE”, is a private citizens group that asked the Franklin Circuit court last year to clarify the scope of Bluegrass Pipeline’s power and whether the private company could use the right of eminent domain to take property by condemnation and without a landowner’s consent. KURE’s lawsuit was spurred by Franklin County resident Penny Greathouse after a representative of the Bluegrass Pipeline told her the company had the legal right to exercise eminent domain while attempting to secure an easement for the pipeline through her property.

Many other landowners have reported that the company’s representatives threatened the use of eminent domain during their negotiations for pipeline easements. Judge Shepherd stated in his ruling, “Bluegrass remains free to build its pipeline by acquiring easements from willing property owners . . . [H]owever, Bluegrass cannot invoke the sovereign power of eminent domain to threaten or intimidate, or even suggest to landowners who have no desire to sell, that Bluegrass has the right to take their property without their consent.”

The legal concept of “condemnation” under Kentucky law allows land to be “taken” for public use, such as for utility lines or highways. Judge Shepherd however found that, “Bluegrass is a private, for-profit unregulated entity . . . not acting ‘in public service,’ and therefore, it falls outside the scope of KRS Chapter 278.” He further stated that the proposed pipeline does not have any impact on the energy needs of Kentuckians, but rather results in “NGLs, a mixture of highly dangerous chemicals, running through Kentucky farmland and forests, and near rural communities.”

Judge Shepherd’s order makes it clear that Bluegrass cannot invoke eminent domain to threaten or intimidate landowners, but the company does remain free to build its pipeline by acquiring easements from willing property owners. Tom Droege, a company spokesman, said in a statement following the ruling that the company will immediately appeal the decision and continue to purchase easements through face-to-face negotiations with landowners. Droege said Bluegrass Pipeline already has nearly 70% of the route it needs in Kentucky. Regardless, the Bluegrass Pipeline has been significantly delayed. Industry insiders believe that the pipeline is certain to come through Kentucky; however, it may take up to another year to complete the easement negotiation process before construction.

In his order, Judge Shepherd acknowledged the “immediate effect on bargaining power” that his decision would carry with it. Shepherd’s ruling is certainly a win for opponents of the proposed pipeline; however, the conflict is far from over. Landowners must remain vigilant to protect their property rights, carefully weigh their options, and contact an attorney before negotiating a pipeline easement.

The attorneys at McBrayer remain dedicated to ensuring that Kentucky landowners receive just compensation for their land should they choose to allow the pipeline on their property. If you or someone you know is considering allowing the pipeline through their property, contact the attorneys at McBrayer today.

 

JMorgan

Jason S. Morgan is an Associate of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Morgan actively represents large, small, established, and new real estate developers and homeowners beginning with the planning phase of a proposed development through zoning changes, development plan approval, financing and the land acquisition processes.  He also has extensive experience with residential and commercial construction and insurance litigation. He is located in the firm’s Lexington office and can be reached at  jmorgan@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  federal and state law and does not constitute legal advice.