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Tips from Scott Taylor
| Wednesday, May 14, 2014

scotttaylorWe have recently fielded a handful of calls from prospective tenants and landlords regarding “service animals” and “comfort animals.”  The debate over what constitutes a service/comfort animal is very interesting.

For example, a seeing eye dog may be obvious to many.  But how about a pot-bellied pig that is used to calm a tenant’s anxiety?  That one may be a little less obvious.

The information provided herein is not legal advice and should not be taken as the legal gospel.  New laws and cases appear all the time in the courts.  If you have any questions or concerns about service and comfort animals you should definitely contact your own attorney.

Background

The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional support animals, even when a landlord’s policy explicitly prohibits pets. Because emotional support and service animals are not “pets,” but rather are considered to be more like assistive aids such as wheelchairs, the law will generally require the landlord to make an exception to its “no pet” policy so that a tenant with a disability can fully use and enjoy his or her dwelling. So long as the tenant has a letter or prescription from an appropriate professional, such as a therapist or physician, and meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation that would allow an emotional support animal in the apartment.

Discrimination

Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a “no pets” policy would qualify as a reasonable accommodation.

In assessing a tenant’s request for emotional support animal as a reasonable accommodation, the landlord is entitled to consider the administrative, financial, or programmatic repercussions of allowing an animal onto the premises, including the potential disturbance to other tenants. Typically, a landlord will have a difficult time establishing that an emotional support animal constitutes a fundamental alteration or undue burden. As noted earlier, in its internal regulations governing federally assisted housing, HUD specifically states that allowing an assistive animal does not constitute an undue burden.

If the emotional assistance animal is particularly disruptive, or the tenant fails to take proper measures to ensure that the animal does not bother other tenants, however, the landlord may be justified in denying the accommodation or ultimately filing for an eviction.

Written Request

If one needs an emotional support animal to ease the symptoms of a disability, he or she should request a reasonable accommodation, in writing, from the landlord or manager. The request should state that the tenant has a disability and explain how the requested accommodation will be helpful. In addition, the tenant should include a note from his or her service provider, such as a doctor or therapist, verifying the need for the support animal. Note that the tenant need not disclose the details of the disability, nor provide a detailed medical history.

Establishing that the support animal is necessary in order to use and enjoy the residence is critical. Courts have consistently held that a tenant requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal.

Although the landlord is entitled to ask for supporting materials which document the need for an emotional support animal, federal law does not require the tenant to provide proof of training or certification of the animal. The two courts that have addressed this issue directly – the Court of Appeals for the Seventh Circuit and the U.S. District Court of Oregon – have held that the only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of an individual with a disability.

Deposits

If a pet is more properly characterized as a “service animal,” the tenant should be exempt from the pet deposit. According to HUD’s internal regulations:   Service animals that assist persons with disabilities are considered to be auxiliary aids and are exempt from the pet policy and from the refundable pet deposit. Examples include guide dogs for persons with vision impairments, hearing dogs for people with hearing impairments, and emotional assistance animals for persons with chronic mental illness.

When a tenant requests an emotional support or other assistive animal, the landlord should not assume, without justification, that the animal will cause excessive, financially burdensome damage. In the event that a tenant’s assistive animal does cause significant damage, that tenant should certainly be held financially liable. However, it would contravene the purpose of the statutory protections afforded people with disabilities to allow a landlord to charge a deposit at the outset, in the absence of any significant damage. Just as it would be inappropriate to charge a tenant who uses a wheelchair a deposit for potential damage to carpeting, it would be similarly imprudent to demand a deposit from a tenant who uses an assistive animal.

Synopsis 

In California a service or comfort animal is a reasonable accommodation.  The prospective tenant must provide a letter stating their request and it must be supported by a letter from their doctor or therapist.  There is no specific training required of the animal and landlords cannot charge a pet deposit on the animal if it is being claimed as a service animal.

Scott Taylor is the owner of SCV Leasing. For information call 661-294-8500 or email Scott@SCVLeasing.com.

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