Posted on 03/18/2013 in Your Dog, Your Rights.
by Sara Chisnell, UKC Legal Counsel
It’s been rather quiet on the legislative front, with most legislatures across the country just starting new sessions, but that will soon change. In the meantime, I’d like to talk about an issue that has recently come up around the water cooler here at UKC: renting as a dog owner, specifically an owner of certain breeds.
A co-worker has a Doberman puppy and was not aware that his apartment complex had a policy that banned certain breeds, including Dobermans. One of the managers saw him out jogging with his dog, and that was all she wrote: the dog has been evicted from his apartment. He and the dog are both lucky in that he has someone to foster the dog until his lease is finished in a few months, but has been finding that many apartment complexes have Dobermans included on the list of dogs not permitted. Which brings up a lot of questions. Is this legal? Why do landlords have policies such as these? What can dog owners do?
First off, unfortunately for dog owners, these types of policies are legal. In this litigious society everyone purports to be a Constitutional law expert, and so many people claim violation of rights with no real understanding of what rights are actually protected under the Constitution. Quick lesson in Constitutional rights: there is actually very little protection of “rights” from infringement by private actors as opposed to the government. For example, there is really no “right” to free speech on a message board hosted by a private company. Your right to free speech under the Constitution means protection of your speech from being curtailed by the government.
When it comes to property rights (which are afforded even less protection from government action than speech or religious rights), it’s the same story. Dogs are property under the law, and, as such, the government has fairly free rein to regulate them so long as the law is rationally related to a legitimate government interest.
When it comes to private entities and property, they can pretty much do what they want. Restrictions in hotels, by landlords, even dog parks and boarding facilities - they are not violating any laws. You don’t have a right to have dogs wherever you want. The only exception would be the Americans with Disabilities Act. If you have a service dog, it must be permitted.
Why do landlords choose to regulate what kind(s) of dogs are permitted in their rental properties? There are many reasons for this. Some insurance policies will not cover certain breeds of dogs, so some landlords may have their dog policies dictated by their insurance. Only two states have laws against breed discrimination in insurance: Michigan and Pennsylvania.
A Michigan ruling from the Office of Financial and Insurance Services mandates that insurance companies cannot deny, cancel, or non-renew coverage based on the insured’s breed of dog. Pennsylvania’s rule ensures that coverage that has been in effect for at least 60 days cannot be cancelled based on dog breed, but it does not prevent refusal of issuing a policy in the first place.
The media and hype over some breeds have caused so many misperceptions and myths that breed restrictions in rental housing is one result. These misperceptions and automatic labeling of some breeds as “dangerous”, tied with the fear of potential lawsuits, are big factors in the creation of these breed restrictions. The restrictions have a wide range, from listing just one or two breeds to long exhaustive lists, or some choosing to just have weight or size restrictions. I’ve seen breeds you might not expect on these lists, such as Alaskan Malamutes, Australian Cattle Dogs and even Boxers! They all have the same result: leaving some dog owners out in the dark.
Landlords aren’t all misguided, dog-hating tyrants though. They have good reason to be wary of lawsuits. Many cases have been battled out in courts against landlords in dog bite cases as they are seen as the “deep pocket” to pursue for damages. The tenant isn’t likely to have a lot of assets, but the landlord is perceived as having potential payout. It might sound strange that a landlord could be found liable for a tenant’s dog, but it is definitely a possibility. Landlords owe a duty of care to the public and to people lawfully on their land (in some cases even to trespassing children). This duty arises out of ownership of the land and exercising control over it and inclusively the contents therein. Most of the time, the mere presence of a tenant’s dog is not enough to trigger liability (except in the state of Maryland, which we will talk about later.)
Typically there needs to exist dangerous propensities exhibited by the dog prior to any actual injuries. However, the landlord does not necessarily have to have first-hand knowledge of these propensities. The standard is usually that the landlord “knew or should have known” of the dangerous nature. That means that the landlord should exercise reasonable care to inspect the premises and, if they do so, should be able to observe whether there are any dangerous conditions, including dangerous dogs. A very gray area, I know.
A dog that has dangerous propensities may not exhibit them at all times and may not be on display at the time the landlord conducts his or her duty to inspect. Some courts have found renewing a lease triggers a new duty to inspect, meaning a landlord must inspect the premises again even if it’s the same tenant.
If a landlord has actual knowledge or it can be demonstrated they should have known of the dog’s propensities, they will be held liable. For instance, if the dog had been reported to the landlord as acting aggressive or attempting to bite someone, the landlord would be considered to have known the dog was dangerous and could have to pay out if someone is injured by the dog. The state of Maryland has gone well beyond this standard. A civil case where a child was severely injured by a “pit bull” has gone through the courts, and last year the high court in Maryland ruled that a “pit bull” is inherently a dangerous dog, and that if a landlord allows a “pit bull” on their rental property, they are strictly liable for any injuries the dog may cause. In other words, a “pit bull” is held to the same standard as a dog that has actually demonstrated dangerous propensities, and any landlord who allows a tenant to have a “pit bull” that later causes injuries would be liable to the injured party. The original ruling included “pit bulls” and also cross-bred mixes, but a reconsideration ruling in August dropped cross-bred from inclusion and now only applies to “pit bulls”; however, there is no legal definition of “pit bull”, so no one is sure precisely what dogs fall under the generic “pit bull” definition.
This ruling is bad, not only for landlords in expanding liability, but even more so for dog owners who rent. Many landlords have already banned “pit bulls” and many will or already have just banned all dogs, period. Even those who simply ban “pit bulls” may be reaching beyond “pit bulls” if they are forced to breed-identify dogs before allowing them residence; anything that in their mind resembles a “pit bull” may get shut out. This leaves a lot of dog owners with a tough choice, especially if they can’t find a place to rent that will allow their dog. Thus shelters will be impacted, as well, if dog owners are forced to give up their dog in order to find housing. The Maryland legislature, however, has introduced a bill that would reverse this ruling and as of press time, is still in the hearing stages.
The Maryland Senate has also introduced a bill that would prevent homeowner and renter insurance from discriminating by breed. United Kennel Club opposes any form of breed specific legislation and supports both of these bills in Maryland. I encourage any dog owner to support these bills because you never know when your dog might be next on the list.
If you are faced with a situation involving breed discrimination and renting, see if you can talk to your landlord. You will probably have better luck with individual landlords rather than trying to change a policy mandated by corporate-owned apartment complexes. Keep that in mind when looking for a place to rent if you are on the search. If you do get the chance to talk to the landlord about their breed policy, explain to them why breed discrimination will not really protect them from liability, and that breed is not a predictor of dangerous propensities. See if they would be open to accepting a temperament test, CGC test, or even therapy dog status.
Should the landlord be willing to make an exception or change their policy, get it in writing. If none of those work, it’s time to find a different place to live. Agree or not, it’s perfectly legal for landlords to discriminate based on breed and you could end up evicted along with your dog if you violate the terms of the lease.