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HOW CO-OP/CONDO BOARDS OPERATE

Pit Bulls as Therapy Dogs: Navigating Legal Dangers of "Dangerous Breeds"

Judy Cook in Board Operations on February 17, 2012

New York State

Dangerous Breeds Therapy Dogs
Feb. 17, 2012

Stories relating to incidents of deadly animal attacks on humans make national news on a fairly regular basis. Some insurance companies keep lists of dog breeds they consider "dangerous," and will refuse to write policies on homes that keep these breeds as pets. Some of these companies base that decision on a decades-old report by the Centers for Disease Control, entitled Breeds of Dogs Involved in Fatal Human Attacks in the United States between 1979 and 1998.

Pit bulls accounted for

the highest number of deaths

during the time studied.

Among the breeds listed on the report are pit bulls, which accounted for the highest number of deaths during the time studied. Rottweilers, German Shepherds, Huskies and Alaskan Malamutes were also included in the study, which lists well over a dozen purebred and crossbred dogs involved in dog bite-related fatalities.

Insurance Out

A dilemma arises for co-op and condo boards and property managers when a resident with a disability asks to keep an assistance animal that is banned by the property's insurance policy. Can a board refuse to accommodate the request, even if the resident has sufficiently documented his need for the animal? In my opinion, boards would do so at their own peril. Not only is it ill-advised to summarily deny the request, I believe it would be equally risky for the manager to require the resident to obtain a separate policy of insurance on the animal.
 
HUD's office of Fair Housing and Equal Opportunity has made it clear that these types of actions will likely be frowned upon. Its 2004 joint statement with the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, states:

  • "Housing providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation."

The statement then cites an example of a reasonable accommodation that may pose a liability risk for the landlord — use of a motorized scooter inside a multi-tenant building. In this example, HUD and DOJ state,

  • "…the facility may not condition [this accommodation] on a requirement that he obtain liability insurance…"

What's A Board to Do?
 
Recognizing this dilemma, HUD published an internal memorandum in 2006 that discusses insurance policy restrictions.  In part, the memorandum states,

  • "If a housing provider's insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog…, HUD will find that this imposes an undue financial and administrative burden on the housing provider."

By the FFHA's definition, a request is not reasonable if it poses such a burden on a housing provider.
 
However, the memo continues,

  • "…the investigator must substantiate the housing provider's claim regarding the potential loss of or adverse change to the insurance coverage, by verifying such a claim with the insurance company directly and considering whether comparable insurance, without the restriction, is available in the market."

I read this sentence to say that the condo / co-op board will likely be required to attempt to find another insurer — one that does not prohibit the breed of dog in question.
 
According to a national insurance underwriter website, both State Farm and Allstate have changed their approach to underwriting in this particular area of risk. Rather than inquiring about dog breeds during the underwriting process, these companies will only inquire about the behavioral qualities and past incidents of aggressive behavior of the animals in residence. If either of those companies insure co-op / condo buildings in your area, it might behoove you to check on the availability of coverage before you deny an accommodation request for a "dangerous breed" of animal.
 

Veteran property manager Judy Cook, principal of Cook & Company, a member of NARM and the International Association of Real Estate Consultants, writes and consults on property issues and has provided expert opinion and testimony on legislation affecting the industry. This is adapted from her article at JudyCook.biz.

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