MAR Online Blog

In a recent Massachusetts Commission Against Discrimination (MCAD) case, a landlord was required to pay $30,000 in emotional distress damages to the complainants and $17,500 in civil penalties. It was found that his attempt to evict a tenant for non-payment of rent constituted retaliation when the landlord discriminated against that same tenant and her non-tenant boyfriend by failing to make reasonable accommodations for his emotional support dog. There is a lot to unpack in this story, so read on to understand what happened and how property owners, managers, and REALTORS® may be affected by this recent decision.

The back story:

The tenant lived in an apartment complex with an “at will” lease agreement and an explicit no-animal policy. The tenant’s boyfriend and his dog came to stay at this apartment off and on for a few months until the landlord received a complaint from another tenant about the dog. The landlord contacted the tenant and reiterated his no-animal policy, and the boyfriend and dog left the apartment. The boyfriend and his dog returned after a couple months, and the landlord received a new complaint about the dog. The landlord contacted his tenant again, reiterating that the no-animal policy was clear and that she now needed to vacate the apartment. This all may seem fairly “standard” so far and some of you have probably dealt with this in your profession as a REALTOR®. What happened next is where things go from black and white to very grey.

The following day the tenant relayed that the boyfriend’s dog is a registered service animal. A Notice of Termination of Tenancy at Will was hand delivered to the tenant and there was no further discussion concerning the dog or the boyfriend’s disability. The tenant and non-tenant filed a complaint with MCAD alleging discrimination. Meanwhile, all parties, including the dog, remained on the property and the tenant subsequently fell behind on rental payments. The landlord then commenced two Summary Process actions for non-payment of rent which were mediated and dismissed.

Under the mediated agreement terms, the landlord was required to help the tenant with her application for benefits and the parties stipulated that the boyfriend was not an occupant nor a tenant; they agreed to payment terms and the tenancy was preserved.   Sounds like a win-win, case closed, everyone left satisfied. Not so fast, the tenant and her boyfriend guest, still had a discrimination claim pending with MCAD. How did the MCAD Hearing Officer decide and why should property owners, managers, and REALTORSâ tread with extreme caution in these situations?

The Hearing Officer for MCAD:

• Based their decision on the “plain meaning” of Section 4(6) of G.L. c. 151B and concluded that “any person” is protected from discrimination and determined that the tenant’s boyfriend had standing to bring the discrimination claim without determining his status as a resident or defining any relationship with the landlord.
• Reasoned that the broad remedial purposes underlying the antidiscrimination statutes allowed the non-disabled tenant to have standing by association so that the boyfriend would not have greater rights than the tenant making the reasonable accommodation meaningless.
• Found that the landlord avoided discussing or offering the reasonable accommodation thought an interactive dialogue both with deliberate action and requisite intent to discriminate.
• Reasoned that the landlord deviated from “usual policy” when he failed to include eviction language in the first Notice to Quit but added eviction language in his subsequent non-payment notices to the tenant and found that this was evidence of pretext to discriminate and therefore retaliation for filing the MCAD claim.

So, what does this all mean for you?

Based on the MCAD decision, the broad use of “any person” without establishing residency or relationship, could open the door to lawsuits from squatters, holdovers in post-foreclosure, trespassers, licensees, and other overnight guests while imposing a duty on property owners, managers, and potentially, their REALTORSâ.

The decision also cautions landlords and property managers from following established legal practice by initiating summary process actions for non-payment after a complaint is filed. Despite clear non-payment and the landlords attempts and success at mediation, agreed settlement and tenancy preservation, the Hearing Officer still found that he acted with intent to retaliate. This only serves to add more confusion to a topic that is already so grey.

How can REALTORS® protect themselves and advise their clients?

That answer is simple, avoid crossing into legal practice! Stay away from making decisions concerning reasonable accommodations and instead advise all clients to seek the guidance of private counsel in drafting policies and addressing these types of scenarios. Additionally, you can provide your client with the following resources from the U.S. Department of Housing and Urban Development: Assistance Animals and, U.S. Department of Housing and Urban Development: Reasonable Accommodations and Modifications.

This case makes it abundantly clear that the law is NOT clear. Shocking, isn’t it? More guidance is necessary, and hopefully an appeal will shed light on how to navigate these situations in the future. For now, remember to tread with extreme caution, be the source of the source, and always defer to qualified counsel.