What documents might a landlord require from a tenant with an assistance animal?  |  Whitman Legal Solutions, LLC

What documents might a landlord require from a tenant with an assistance animal? | Whitman Legal Solutions, LLC

Camille Saint-Saint forbade performing his comedy suite Carnival Animals during his lifetime. The pavilion was first shown 100 years ago, and consists of 14 movements, each of which is a musical description of an animal. Saints’ procession through the zoo consists of lions, chickens, rooster, wild donkeys, turtles, elephants, kangaroos, aquariums, cuckoos, hops, and swans as well as less traditional zoo animals: long-eared animals, pianists, and fossils, favorites for children’s parties.

The cynical characterization of pianists, constantly obsessed with technique, as the gossip equivalent of animals, such as monkeys, would resonate even more with adults. And if one listens closely to the “fossils” movement, one can hear themes from San San’s earlier work.

Sometimes the list of animals that can provide emotional support to individuals with disabilities can seem as long and varied as the animals at a carnival. For example, the Washington Post recently included a feature about WallyGator, an emotional support crocodile who goes everywhere with Joseph Heaney. Another unusual emotional support animal, Dexter the Peacock, became famous in 2018 when an airline didn’t allow him to fly with his owner. And in 2020, a rabbit named Coco made the news when she traveled from San Francisco to Japan with her owner—in business class, no less.

Laws regarding service emotional support animals can be overwhelming for property owners – and guidelines can vary depending on the type and function of the animal. For example, the Department of Housing and Urban Development (HUD) recently filed a discrimination charge against Fox Run Apartments in Shawnee, Kansas, and the property management company, Peterson Properties, Inc. and several Peterson employees, alleging that they discriminated against the man’s disability by requiring unnecessary doctor certificates as a condition of moving into an apartment with his emotional support 70-pound Doberman.

This article discusses the issues with Fox Run Apartments fees, law property owners and managers should navigate when evaluating accommodations for service animals and emotional support, and how requirements may vary depending on the specific animal.

HUD charge to distinguish

HUD alleges that the complainant (whom I’ll call Jim) completed an apartment rental application for him, his teenage son, and his 70-pound emotional support animal on June 2, 2020. Fox Run typically bans pets over 25 pounds. So, with the application, Jim provided a letter from a psychiatrist at a Veterans Administration (VA) medical center stating that Jim’s mental health-related disorder qualifies as a disability under the FHA. The psychiatrist also wrote that the dog was essential to Jim’s mental health and prescribed a dog of his choice to help relieve his symptoms.

Jim pursued the matter with the owner several times, and on June 16, 2020, Fox Run agreed to Jim’s request and set a transition date to June 29, 2020. For the first time, Fox Run requested an additional form called Reasonable Accommodation – Third Party Verification Form (Verification Form) from female doctor.

The verification form asked three questions:

  1. Is the potential tenant disabled as defined by the FHA?

  2. Based on the specific disability, does that individual need the required accommodation Exactly as stated (eg, the dog owned by Jim is supposed to be the samed) To have equal enjoyment of the premises as a non-disabled resident?

  3. If asked, would you testify to it in a legal or administrative proceeding?

Jim immediately signed the authorization on the verification form, and Fox Run faxed it to the VA psychiatrist’s office but received no response. On June 23, 2020, Fox Run notified Jim that the verification form must be submitted by June 26, 2020, otherwise Jim’s request will be denied. On that day, Jim called the psychiatrist’s office in Virginia and learned that the doctor would be on vacation until June 29, 2020. After learning of the psychiatrist’s absence, Jim requested that his move date be postponed.

Fox Run demanded that Jim submit the verification form by June 26. And when that didn’t happen, Fox Run canceled Jim’s lease. Internal notes indicate that a property management employee decided that the Veterans Affairs Assistant Psychiatrist’s initial letter was “inadequate.” Jim, who had to leave his current apartment by June 30, had to get a different apartment at a higher cost.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA), state and local laws may apply when evaluating accommodations for all types of real estate.

The ADA requires accommodations only for “service animals” and defines “service animal” narrowly. Only dogs (and in some circumstances, miniature horses) can be service animals. Under the ADA, service animals must be trained to do work or perform tasks for an individual with a disability. The ADA regulations exclude emotional support animals that have not been trained to perform a specific task, even if they are dogs.

The ADA requires that service animals be allowed in areas of public residence. This means that apartment and business rental offices are open to the public, as well as restaurants, hotels, doctors’ offices, stores and schools, must allow service animals into any area where the public is generally permitted.

Only under these limited circumstances, a property owner may disqualify a service animal:

  • The handler cannot or does not control the service animal

  • Service animal is not a pet

  • A service animal is an immediate threat to the health and safety of others and cannot be reduced or eliminated through reasonable modification of practices or procedures.

Whether a service animal is an immediate threat should depend on the specific animal involved, not on guesswork or experience with other animals. Therefore, a property owner cannot exclude all dogs of a particular breed based on the breed’s reputation for aggression. There must be evidence that the particular service animal in question poses a threat before it can be disqualified.

Fair Housing Act requirements

In addition to the ADA, most homeowners must comply with the FHA. The FHA requires that the owner provide reasonable accommodations for individuals with disabilities who use assistance animals.

Service animals and emotional support animals are considered “help animals” under the FHA. Therefore, the FHA may require the owner to allow cats and rabbits, and possibly even peacocks or alligators, if they are emotional support animals.

Landlords who receive an application for housing by allowing an assisted animal to evaluate the application should use these considerations:

  • Whether the tenant has a disability (defined as a physical or mental disability that significantly limits one or more major life activities)

  • Does the animal work, perform tasks, provide assistance or services, or provide emotional support to the individual with a disability?

  • Do animal services or support help with one or more symptoms or effects of the individual’s disability?

If an individual’s disability is not visible, the owners may ask the disabled person to document their disability and need for an assistance animal. If the disability is apparent, but there is no need to assist an animal, the owner may request documentation that supports the need for an assistance animal.

For example, an owner may request documentation from an individual with a mental disability who has an emotional support animal if the disability and need for the animal are not apparent. However, the owner may not require a blind person with a guide dog for evidence of a disability or need for a service animal. For example, if an individual has a mobility disability and uses a wheelchair, but the need for a service animal is not apparent, the owner can only inquire about the need for a service animal.

If an individual qualifies for housing by having a service or emotional support animal, the FHA supersedes any “no pets” or pet size or type restrictions that generally apply to renters. Owners may not charge pet fees or a deposit for service or emotional support animals. However, tenants are responsible for damages caused by their assistance animals.

The owner does not need to house an assistant animal if:

  • Residency will provide an undue financial and administrative burden

  • The accommodation will fundamentally change the nature of the owner’s services

  • The designated assistance animal poses an immediate threat to the health or safety of others, and such threat cannot be reduced or eliminated by other reasonable accommodations.

  • The designated assistance animal may cause significant damage to the property of others, and such damage cannot be reduced or eliminated by other reasonable accommodations.

As with the ADA, whether a service animal poses an immediate threat or could cause significant harm should depend on the specific animal involved, not on guesswork or experience with other animals.

What does HUD say Fox Run apartments are wrong?

HUD says Fox Run Apartments’ request for the second model was not necessary. Therefore, HUD claims that refusing to hire Jim in the absence of the form was unlawful discrimination based on his disability.

In January 2020, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) released its 2020-01 Notice (FHEO Notice), which is designed to help housing providers and individuals with disabilities assess an individual’s need for an assistive animal. At the time, HUD noted in its FHEO notice that 60% of all FHA complaints include requests for reasonable animal assistance supplies.

An FHEO notice indicates that a note from a tenant’s health care professional confirming a person’s disability or need for an emotional support animal can be relied upon provided the provider has personal knowledge of the individual’s condition. The HUD charge alleges that Jim provided this information from a Virginia psychiatrist, but Fox Run Apartments improperly deemed it insufficient.

Furthermore, the FHEO notice indicates that the housing provider cannot request certain types of evidence (or, in this case, a certain form) if the information provided by the tenant meets HUD requirements. Specifically, the FHEO notice does not allow the owner to require the service provider to state that they are willing to testify about the individual’s disability. So this part of the owner’s model was unreasonable.

Fox Run Apartments’ objection to Jim’s dog was that he went over the usual 25-pound pet size limit. The FHEO notice reminds owners that they may not restrict the breed or size of a dog used as a service animal – any restrictions must be specific to the dog in question. Therefore, Fox Run Apartments were not allowed to object to Jim’s dog due to its size, nor could Fox Run Apartments require Jim’s provider to certify that he needed exactly that dog.

The FHEO Notice treats requests for accommodations that allow emotional support animals differently depending on the type of animal. Landlords have little latitude to object to animals “usually kept in homes,” such as dogs, cats, small birds, rabbits, hamsters, gerbils, guinea pigs, fish, turtles, and similar animals typically kept in a home.

For animals not normally kept in homes, such as crocodiles or peacocks, the individual requesting accommodation bears the burden of providing documentation that a particular type of animal is necessary as a residence. The FHEO notice provides an example of a monkey trained to perform tasks for a paralyzed individual. Or a severely allergic individual may need a funky animal that they are not allergic to.

HUD’s complaint does not describe the defenses of Fox Run Apartments – and it is uncommon for charges to reach this point unresolved unless the owner believes their position. However, this case is a cautionary tale for landlords about requiring specific interior shapes or limiting the size or breed of emotional support animals.

This series draws from Elizabeth Whitman’s background and passion for classical music to illustrate creative solutions to legal challenges faced by companies and real estate investors.

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