When is a Landlord with a “No Pet” Policy Required to Accommodate a Tenant’s Emotional Support Animal?

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By: Alisa N. Carr, Esq.

The Fair Housing Act, 42 U.S.C. § 3601 et seq., as amended, (“FHA”) prohibits discrimination against a person on the basis of a handicap or a disability by refusing to make reasonable accommodations when necessary to afford the person equal opportunity to use and enjoy a dwelling. An individual with a disability is defined as “any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.”

Under the FHA, there are two (2) types of assistance animals (i) Service Animals, and (ii) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (“Support Animals”) (collectively (“Assistance Animals”).

Assistance Animals are not pets. Rather, they are recognized by the FHA as a reasonable accommodation for a person with a disability. A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary in order for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces. A landlord’s failure to accommodate a tenant’s Assistance Animal in a “no pets” building can constitute discrimination and is a common reason housing discrimination complaints are filed with the U.S. Department of Housing and Urban Development (“HUD”).

A housing provider should consider the following questions in conjunction with a request for an Assistance Animal as a reasonable accommodation:

  1. Does the person have an observable disability or does the housing provider (or agent making the determination for the housing provider) already have information giving them reason to believe that the person has a disability?
  2. If the disability is not readily observable (or the housing provider has no prior information), has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?
  3. Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability (or is the disability readily visible)?
  4. Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?
  5. Is the animal commonly kept in households?

The FHA does not require a dwelling to be made available to an Assistance Animal whose presence would constitute a direct threat to the health or safety of other tenants and/or guests, or that would result in substantial physical damage to the property of others. A housing provider may refuse a reasonable accommodation for an Assistance Animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the tenant takes to maintain or control the animal. One example would be tenants who are able to, but choose to leave their Assistance Animals unleashed, resulting in injuries to other tenants or animals.

While a housing provider may not ask for access to medical records, an individual requesting an Assistance Animal as a reasonable accommodation must present credible, reliable information that proves: (1) he or she has a disability, (2) that substantially limits one or more major life activities, and (3) that he or she has a legitimate, disability-related need for an Assistance Animal. Requests for a reasonable accommodation focus on whether the requested accommodation is (1) reasonable and (2) necessary to (3) afford handicapped persons an equal opportunity to use and enjoy housing. Once this standard is satisfied, the landlord bears the burden of proving that the requested accommodation is unreasonable.

Pet rules do not apply to Assistance Animals. Accordingly, housing providers may not limit the breed or size of a dog used as an Assistance Animal, but can deny the accommodation request based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration.

Housing providers cannot charge a “pet deposit,” advance surcharge or administrative fee for disabled individuals who rely on Assistance Animals. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. A housing provider, however, may charge a tenant for damage an assistance animal causes if it is the housing provider’s usual practice is to charge for damage caused by pets of tenants.

The proliferation of websites offering quick and inexpensive paperwork to “certify” an Assistance Animal has been an ongoing concern with housing providers. Staff training and knowledge of the applicable laws and regulations is fundamental to avoid on site issues with tenants and avoid costly litigation.

The attorneys in Leech Tishman’s Litigation Practice Group work with property managers, maintenance personnel and owners to proactively train staff, develop policies and procedures and identify issues to prevent FHA litigation.

If you have any questions regarding Assistance Animals, or wish to discuss specific issues, please contact Alisa N. Carr. Alisa is a Partner with Leech Tishman and a member of the Litigation Practice Group, where she leads the ADA Title III Defense Group and co-leads the Real Estate Litigation Group. She is also a member of the Real Estate Practice Group, where she co-leads the Assessments and Appeals Group and the Permitting and Zoning Group. Alisa is based in the Pittsburgh office and can be reached at 412.261.1600 or acarr@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, construction, emerging cyber technologies, energy & natural resources, healthcare, and hospitality industries. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota, and Washington, D.C.