What Do You Know About Your Landlord Rights and Service Animals?

If you own a No-Pet property, you may want to consider changing your preference to Pets – Negotiable.

Tenants with service animals have been afforded rights for “reasonable accommodation” since the implementation of the Fair Housing Amendments Act of 1988. However, with the emergence of the assistance animal the numbers of tenants applying for tenancy with pets that legally escape the usual pet rental policies is on the increase. Word is getting out in the tenant community that if a desired rental does not accept pets, all you have to do is to claim your pet to be a companion animal and the landlord’s and rental agency’s hands are tied.

Let’s start by examining the terminology. There are Service animals and Assistance animals. Service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. These animals are not usually a concern to landlords. They are usually dogs, (in rare circumstances a small horse may qualify where accommodations offer suitable stabling). Service animals have been professionally trained and will rarely cause damage or a nuisance, and are recognized by the ADA (American Disabilities Act).

Assistance animals, on the other hand are quite different. They are usually a dog or a cat, but can be any breed of animal. Assistance animals are sometimes referred to as Support, Emotional Support, Companion and Comfort animals. These animals are considered, by their very presence, to mitigate emotional or psychological symptoms associated with the handler’s condition or disorder. The animal is NOT required to be trained to perform a disability-specific task.

So now that we have the terminology figured out, let’s examine Fair Housing regulations regarding these animals. Service animals are exempt from pet deposits, additional pet rent and cannot be refused accommodation otherwise considered a no-pet property. They also by law are allowed to accompany their handler in most public areas. Assistance animals are awarded the same privilege in reasonable accommodation. Both service and assistance animals, under Fair Housing regulations, are NOT classified a pet. They are an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. This all seems pretty fair and reasonable so far, doesn’t it?

Service animals are an easy category to understand, and to appreciate their importance in the household. It’s when you get to the assistance/support/companion/comfort animals that there is often a question as to how this animal differs from just a plain ol’ pet.

When a landlord or leasing agent receives a request for reasonable accommodation for a service or assistance animal two qualifying questions may be addressed:

1. Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? 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 identified symptoms or effects of a person’s existing disability?

These seem like reasonable questions to ask, and appear as though they would weed out any applicant trying to pass off a pet as an assistance animal. However, the housing provider, under Fair Housing regulations, is bound by strict limitations in their ability to establish and/or verify the answers to these two key questions.

• There is no requirement for a service/assistance animal to have any special certification.
• The housing provider is not allowed to contact the qualified professional/person in position to know directly if the applicant has a disability that requires an assistance animal.
• When there is an obvious disability with an obvious need, the housing provider may not request proof of need for a support/assistance animal.
• The housing provider may request proof of need when there is a non-obvious disability or an obvious disability with a non-obvious need.
• Where proof of need is allowable, the housing provider may request written verification by a “qualified professional or person in the position to know”. This person may include, but is not limited to:
  • Vocational rehabilitation counselor
  • Case manager
  • Physician’s Assistant, RN
  • Therapist
  • Physician
    (online sites are available to acquire “written verification”. The online “therapist” has never previously met or treated the “customer/patient”. A simple online questionnaire and small fee is all that is needed to obtain verification of need.)
• The housing provider is not allowed to request disclosure of the severity or nature of the disability.
• An assistance animal cannot be required to be spayed or neutered.
• The housing provider cannot require the applicant to obtain insurance coverage specifically to cover potential damage caused by the service or assistance animal.
• If the city, county or state, require licensing and/or certain vaccinations for animals, the housing provider may require it.
• The housing provider is not allowed to discriminate against breed, size, weight or species.
• The housing provider is not allowed to limit the number of service animals a single person or household may have.

The above list contains major elements of Fair Housing regulations determining reasonable accommodation, but by no means is complete.

In summation, it is fair to say that the applicant for reasonable accommodation certainly has the advantage over the housing provider. Once the tenant and support animal are residing in a rental property they can be held to usual rental terms and conditions. The tenant is expected to be able to exercise care and control of the assistance animal. If the animal proves to be a health hazard, be causing damage to the property or a nuisance or danger to neighbors, the housing provider may take action.

Now back to the opening statement that suggests property owners of no-pet properties might want to consider converting to pet-negotiable. It is certainly not without hesitation or concern that RMA suggests this. Our agency has strict pet regulations, but the assistance animal situation is getting to a rate of occurrence where we believe it is time to address this problem proactively. Let me explain our logic in this suggestion. Pet properties require a large additional deposit that gives the property owner some extra financial security against pet wear and tear. It also requires a non-refundable deposit, which compensates our company for additional walk-through inspections. There is also an additional $25 rent per pet that benefits the property owner. Even with a well-behaved pet, turnover rent-ready cleaning will always cost more to make a property free of pet allergens for future tenants. As made clear in this article, none of these additional charges may be imposed on a service or assistance animal rental. So rather than outright deny a pet owner accommodation, which could put the landlord at risk that the pet turns into an assistance animal overnight, it might be prudent to make pets a negotiable factor, which would allow the property manager the benefit of being allowed to ask questions about the breed and size of pet and to obtain approval from the property owner before allowing the tenancy, and of course to charge a pet deposit and pet rent. This strategy could reduce the number of requests for “reasonable accommodation”.

There is one other category of animal to consider – The Therapy Animal.

Therapy animals are well socialized and generally calm and obedient. They provide affection and comfort to people in hospitals, retirement homes, nursing homes, schools, hospices, disaster areas, and to people with autism. From my research, Therapy animals would be considered pets, not service or assistance animals, because their handler/owner is not the person with a disability and therefore they would not fall under the description of being an assistive device for the resident of a rental property. However, that is my interpretation and it has not yet been confirmed by an agency in authority.

Resources:
 Intermountain Fair Housing Council – Frequently Asked Questions Regarding Reasonable Accommodations for a Support Animal.
 2013 HUD Guidance SA and Assistive Animals
 The information provided has not been reviewed by an attorney and is based upon an interpretation from above listed resources. Therefore the information provided should not be considered a legal representation.