Assistance Animals and Tenants–What Landlords Need to Know

By Charles P. Castellon, Esq.

All rights reserved, 2017 ®

A hot and dangerous legal topic for landlords is the issue of service animals.  This subject lies at the intersection of three federal statutes—the Fair Housing Act (“the Act”); Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act (“ADA”).  The legal landscape in this area creates much confusion and uncertainty for landlords concerned about compliance and liability.

This article shall provide a basic overview of the legal requirements and what property owners can and can’t do under the laws. The ADA narrowly defines “service animals” to include dogs (and in some circumstances, miniature horses) and generally applies to public accommodations known as “covered facilities,” not including residential homes.  This article will focus on the requirements of the Act and Section 504 that more clearly apply to residential tenancies. Florida Statute 413.08 also applies, but mainly mirrors the federal laws.

Reasonable Accommodations for Persons with Disabilities Under the Act and Section 504

Both the Act and Section 504 prohibit discrimination against, and require reasonable accommodations for, assistance animals needed by disabled tenants.  If a landlord has a “no pets” policy or otherwise restricts the right to have pets, those rules cannot apply to tenants who qualify for these legal protections.

An “assistance animal” is defined “as 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.”  Upon receipt of a tenant or applicant’s request for a service animal accommodation, the landlord must consider the following two questions:

  • Does the person seeking to use and live with the animal have a disability—physical or mental impairment that substantially limits one or more major life activities? and
  • Does the person making the request have a disability-related need for an assistance animal?

If the answer to either question above is “no,” then no accommodation is required and the landlord’s no pets policy may stand.  If the answer to both questions is “yes,” then a reasonable accommodation to allow the assistance animal must be provided.  An additional pet deposit may not be required for service animals.  Also, the landlord may not demand proof of the animal’s training.  In fact, neither the Act nor Section 504 requires any specific training or certification for the animal.

Other applicable “can’t-dos” include denying the request because of uncertainty of whether there is a disability or disability-related need for the animal.  A landlord should not simply deny the request because they doubt the sincerity of the tenant.

The landlord may ask applicants whose disability is not readily-apparent or not already known to the landlord for reliable documentation of disability or need for the animal.  This may include a letter from doctor, social worker or mental-health professional.  The landlord cannot, however, demand to see the tenant’s medical records.

Exceptions to Required Accommodations to Allow Assistance Animals

If under the analysis above, it’s determined that an assistance animal must be allowed in, some exceptions may apply that would allow denial of the animal.  The first exception applies if the animal would cause “undue financial and administrative burden” or “fundamentally alter the nature of the housing provider’s services.”

The assistance animal also may be denied if that specific animal “poses a direct threat to the health or safety of others that can’t be reduced or eliminated by another reasonable accommodation.”  Another exception would exclude the animal would apply if it “would cause substantial physical damage to the property that can’t be reduced or eliminated by reasonable accommodation.”

A significant part of these legal standards for exceptions is the requirement that a case-by-case review applies and that it takes into consideration the qualities of the specific animal in question rather than general considerations about the type of animal at issue.  The law clearly intends to prohibit animal stereotyping or profiling, such as the common belief that pit bull terriers are more dangerous and volatile than other dog breeds.

This seems an unfair standard.  It is likely very difficult, if not impossible, to predict how any given animal may behave.  Some pit bulls would let a toddler hit it on the nose with a frying pan without retribution while a cute little monkey could bite your face off unprovoked.

The same kind of unpredictability may apply to any of the other exception issues, such as property damage.  It is hard to understand how a landlord is supposed to evaluate a tenant’s accommodation request based on little more than a mere glance at the proposed animal without further information, including training records the landlord is not allowed to see, if they exist at all.

Further stress may plague landlords when they consider the liability potential from the harm assistance animals may cause other people or their property.  This is especially worrisome in multi-family housing where others’ exposure to the tenant’s animal is more likely.

In summary , the legal issue of service animals is a confusing powder keg of potential trouble for residential landlords.  Real estate investors should be aware of their duties and the statutory standards discussed in this article.  Any request for an assistance animal accommodation should be taken seriously and carefully evaluated.  When in doubt, consult with an attorney and measure twice so you can cut once.

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