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KASS: Can landlord maintain pet-free environment?

DEAR BENNY: I have just become a landlord and want to learn more about any obligation I may have to allow a dog into my building that supposedly is helping a person with a disability. We are trying to have a pet-free environment. – Kerry

DEAR KERRY: The Americans with Disabilities Act (ADA) requires businesses that provide goods or services to the public, which includes rental properties, make “reasonable modifications” so as to accommodate people with disabilities. Service animals are included in this requirement.

What is a service animal? One that has been individually trained to do work or perform tasks for someone with a disability. In my research, I was surprised to learn that some dogs are trained to smell the breath of a diabetic so as to alert its owner of a change in glucose levels.

This column is addressing only service dogs. They differ from emotional support – comfort or therapy – animals. These animals have not been specially trained to perform a specific medical need for the disabled. They are not covered under ADA, but are covered under the Fair Housing Act and under some state or local jurisdictions.

If it is obvious that the animal in question is a service animal, you cannot ask any questions to the potential tenant. But in case of doubt, according to a recent Department of Justice report, you can ask only two questions: (1) Is the dog a service animal required because of a disability? and (2) What work or task has the dog been trained to perform? If you ask other questions – such as asking about the nature of the disability, you may have violated ADA. The Justice Department enforces that law.

For a copy of the report as well as more information about service animals, go to www.ada.gov.  And make sure your legal counsel is knowledgeable on this subject so she can give you quick, on-the-spot guidance if and when you are faced with such an issue.

DEAR BENNY: I signed a contract to buy a condo and settlement was to take place with 60 days. All of the contingencies – review condo docs, inspect the place and financing – have been satisfied. The other day, I received a call directly from the seller and was told that he does not plan to sell it to me and asked if I would release him from the contract, and told that he will agree to give me back my earnest money deposit. What should I do? – Tim

DEAR TIM: You basically have three options: Get your money back, sue for damages or sue for specific performance.

Suing for damages is speculative. Yes, you put time and money into the process, especially dealing with your lender, but in my opinion it’s not worth the effort.

Suing for specific performance may make sense. Read your sales contract. What does it say about your remedies if the seller defaults? Is there language in the contract that the prevailing party in litigation will be awarded attorney’s fees?

In such a lawsuit, you ask the judge to direct the seller to comply with the terms of the sales contract and convey title to you. This is known as an equitable remedy, and the decision is in the discretion of the judge.

The facts are important. If the seller thought he could get a higher price from someone else, I suspect the judge will force the seller to convey to you. But if, for example, the seller is very sick and must stay bedridden, the judge may decide it’s not fair to force the seller to move out immediately, and the judge may force the seller to sell but require that you let him stay in the property for a period of time, paying you the equivalent of rent.

According to one judge in a case I won several years ago, “Specific performance of a contract is ordered when the legal remedy, usually money damages, is deemed to be either inadequate or impractical.” But since land, which includes your condo, is unique, “it is routine for courts to enforce contracts to purchase real estate by ordering that they be specifically performed.”  (Tauber v Quan, DC Court of Appeals.)

Discuss your situation with your attorney as soon as possible. You want to make sure that you can put a stop to the seller selling to a third party, and your attorney will know how to do this.


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