Can Fido Live Here? A Landlord’s Guide to Assistance Animals

 

Most landlords don’t allow tenants to have pets, of any kind, in rental units. However, a “no pet policy” may have to be suspended if a current or prospective tenant has disabilities.

The federal Fair Housing Act (the “FHA”) prevents discrimination in housing related matters because of race, color, religion, national origin, sex, familial status, or disability. The FHA applies to a variety of housing transactions such as rentals, sales, mortgages, and homeowner’s associations. The FHA’s goal is to ensure that all persons receive equal housing opportunity.

It’s unlawful for a landlord to refuse to rent to a person because of a disability. A landlord may not impose different application or qualification criteria, rental fees, or conditions than those provided to persons who are not disabled. Additionally, landlords must provide reasonable accommodations to persons with disabilities. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space.

Under the FHA, an assistance animal is a reasonable accommodation in a housing unit that has a no pets rule for residents. Assistance animals are sometimes referred to as “service animals,” “assistive animals,” “support animals,” “therapy animals,” “emotional support animals,” or “companion animals.”

When considering a reasonable accommodation request to allow an assistance animal, a landlord shall consider the answers to the following questions:

 

Is the individual for whom the request is made a person with a disability?

Federal laws define disability as: “Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.”

In general, a physical or mental impairment limits caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The law also covers someone who is associated with a person with a disability.

A landlord should inform the individual that to evaluate a request that the landlord needs documentation verifying the disability and the need for an assistance animal (i.e. a letter from a doctor familiar with the individual).

Is the requested accommodation necessary to allow the person with a disability an equal opportunity to use and enjoy a dwelling, including common areas?

In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the symptoms or effects of a person’s disability? Since a landlord cannot ask about the nature or severity of a disability, a landlord and their agents must be careful in how this information is requested. Disability is the most common basis for the filing of housing discrimination complaints nationally. Landlords, property managers, and managing agents should be aware of the analysis and which questions to ask. Landlords, and their agents, who violate federal laws are subject to hefty fines.

Would the requested accommodation impose an undue financial or administrative burden to the landlord or fundamentally change the nature of a dwelling?

Accommodations are generally considered reasonable unless they impose an undue financial or administrative burden. Whether a burden is “undue” considers the resources available to the landlord in question. For instance, an accommodation may not be unduly burdensome for a company that owns a large number of rental units as it would for an individual that owns fewer units. The answer to this question is highly fact-specific and requires a case-by case determination.

A “no” to any of these questions means that a landlord is not obligated to make a reasonable accommodation. However, a mistake in the analysis can be costly.
Each request by a current or prospective tenant for an animal should be made on a case-by-case basis. It is important for landlords with a “no pet policy” to be able to distinguish assistance animals form ordinary pets. It is wise to ask all necessary questions and consult legal counsel for assistance in achieving an informed analysis.

Some key items to remember:

  • A “service animal” is defined under the Americans with Disabilities Act as a dog that is individually trained to do work or perform tasks for people with disabilities.
  • An “assistance animal” is not limited to a dog or cat. Dogs are the most common, but other animals can also qualify as assistance animals.
  • “Emotional support animals” or “companion animals” are a subset of assistance animals that also provide emotional support, including providing companionship, and unlike a service animal, they do not need specialized training.
  • Breed, size and weight limitations may not be applied to a service animal or an assistance animal. Instead, a landlord may only determine if the specific animal in question poses a direct threat to the health or safety of others.
  • Under New York law, a service dog must be in a harness or leash, but need not be muzzled.
  • Landlords cannot charge a pet deposit, fee or security deposit for disabled individuals who rely on service animals or assistance animals.
  • If landlords have a policy of charging tenants for damage to the tenant’s dwelling unit or the common areas caused by the tenant, then a landlord may require a tenant to cover the costs for repairs due to damage from the service animal or assistance animal.
  • If an insurance carrier would cancel, increase policy costs, or change an insurance policy’s terms because of the presence of a particular breed of dog or type of animal, then the insurance carrier would be violating the FHA. An insurance carrier must also make a reasonable accommodation to its policies.

This article is intended for general informational purposes only and should not be considered legal advice or counsel, nor does it create an attorney-client relationship.

Kristen Cavatassi is an attorney that concentrates her practice on real estate, financing, estate planning and corporate matters. She provides representation on leasing matters to local and regional landlords, including drafting and negotiation of lease agreements. Kristen can be reached at kristen@morgdevo.com or (585) 672-5500.