Dos & Don'ts When Handling Requests for Assistance Animals, Part 2

This month’s lesson is the second of a two-part series on handling disability-related requests for assistance animals. In Part 1, we focused on who qualifies as an individual with a disability and when you must make a reasonable accommodation to your pet policies to allow an assistance animal at the community.

In Part 2, we address concerns that often arise when dealing with assistance animals, such as requests for animals excluded under your community’s pet policy because of their size or breed. Or it could be a request for an assistance animal other than the usual dog or cat—or perhaps for multiple assistance animals. And you may be wondering whether you can apply common conditions required of pet owners, such as payment of pet deposits and fees, and how to protect the community from damage caused by assistance animals.

In this lesson, we’ll address these and other common concerns when dealing with assistance animals. We’ll review the rules under fair housing law and boil them down to seven more Dos & Don’ts—things you should and should NOT—do when handling requests for assistance animals. Then you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.

If your community bans pets or imposes restrictions or conditions related to animals, then you must consider requests for reasonable accommodations—that is, for exceptions to your policies—to allow individuals with disabilities to keep an assistance animal at the community. Upon receiving a request for an assistance animal, HUD says that you must consider:

• Whether the person seeking to use and live with the animal has a disability—that is, a physical or mental impairment that substantially limits one or more major life activities; and
• Whether the person making the request has a disability-related need for an assistance animal.

If both of those requirements are met, then you must make an exception to pet policies to permit an individual with a disability to have the assistance animal—unless the request is unreasonable.

If your community has a no-pet policy, you may believe that allowing any animals is unreasonable. But it doesn’t work that way. Under fair housing law, a requested accommodation is unreasonable if it imposes an undue financial and administrative burden on the community—or fundamentally changes the nature of its operations. You can’t make a blanket decision that all requests for animals are unreasonable. The law requires you to consider the circumstances of each request and weigh various factors, such as the costs and benefits of allowing the animal and the availability of alternative accommodations that would effectively meet the individual’s disability-related needs.

In addition, communities may deny a request for an assistance animal if it would pose a direct threat to the health and safety of others—or would cause substantial physical damage to the property of others—which can’t be reduced or eliminated by another reasonable accommodation. Again, you can’t exclude assistance animals based on the blanket assumption that all animals—or animals of a specific breed or size—pose a direct threat to health and safety or would cause property damage. HUD says that breed, size, and weight limitations may not be applied to assistance animals.

Instead, HUD says that you must make an individual assessment of the specific animal involved based on objective evidence about the specific animal’s actual conduct—not on mere speculation or fear about the types of harm or damage an animal may cause—or instances of harm or damage that other animals have caused. Even if there is such evidence, you must consider whether the threat can be eliminated or reduced with some other reasonable accommodation, according to HUD.

7 MORE DOS & DON’TS

WHEN HANDLING REQUESTS FOR ASSISTANCE ANIMALS

RULE #1:

     DO Consider Requests for Exceptions to Pet Policies for Assistance Animals

     DON’T Reject Animals Otherwise Excluded Under Pet Policies

Carefully consider requests for assistance animals, even if the request is for an animal that’s generally prohibited under your pet policies.

It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed, but remember, these limits don’t apply to assistance animals. That’s because assistance animals aren’t pets under fair housing law: They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability—or provide emotional support that alleviates one or more identified symptoms or effects of a disability, according to HUD.

Even if your pet policy restricts the size or type of animals allowed as pets, you can’t exclude assistance animals on that basis. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal. Nor can you reject a request simply because it’s for an animal other than a dog. Though dogs are the most common type of assistance animal, other animals can also be assistance animals, according to HUD.

And don’t refuse a request for an assistance animal until you see proof that the animal has been trained or certified to provide disability-related tasks or services. Fair housing law doesn’t require that assistance animals be individually trained or certified, according to HUD.  

Example: In 2014, a Florida community was ordered to pay $135,000 in damages and attorney’s fees for denying a resident’s reasonable accommodation request to keep a dog over the community’s pet weight limit as an emotional support animal.

When the resident got the dog over the 25-pound weight limit, the community demanded its removal. The resident submitted two letters from his psychiatrist that the dog was an emotional support animal, which helped him cope with his otherwise difficult-to-manage day-to-day psychiatric symptoms.

In response, the community sent the first of three letters requesting additional information, including details about the nature of his disability and how it limited a major life activity, his treatment, the specific training the dog received, and why he needed a dog over 25 pounds for an equal opportunity to use and enjoy his dwelling.

In a third letter, the psychiatrist explained that the resident had post-traumatic stress disorder (PTSD) related to military trauma, and that it limited his ability to work directly with other people, a major life activity. The doctor said that the resident was able to work at home with the assistance of his emotional support animal; otherwise, his social interactions would be so overwhelming that he would be unable to perform work of any kind.

In response, the community sent two more letters, seeking more details about his disability, treatment, the dog’s training, and specifically why he needed an oversized animal for his disabilities. The resident didn’t reply—and instead sued the community for violating fair housing law. After a jury trial, the resident was awarded $5,000 in damages and $130,000 in attorney’s fees.

On appeal, the court affirmed, ruling that the community effectively denied his accommodation request by repeatedly asking for more information than needed to decide whether he was entitled to keep the dog. The resident proved his PTSD was a qualifying disability and that his requested accommodation was necessary. To prove that the dog was necessary, the only question was whether having the dog would enhance his quality of life by ameliorating the effects of his disability. He proved that it would: His doctor said that without the dog, his social interactions would be so overwhelming that he couldn’t work at all [Bhogaita v. Altamonte Heights Condominium Association, August 2014].

RULE #2:

     DO Consider Requests for Exception to Breed Restrictions

     DON’T Automatically Reject Assistance Animal Based on Breed

You may be faced with some tough questions when it comes to breed restrictions. Many communities have policies restricting certain dog breeds, most notably pit bulls, but HUD says that breed restrictions don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.

Example: In August 2015, a court refused to dismiss claims against a Texas community for denying a resident’s reasonable accommodation to its no-pet policy to keep a mixed-breed pit bull mix for her mentally disabled son. The resident said her son’s doctor recommended an emotional support animal, so she adopted the dog as a puppy. According to the resident, the manager told her to remove the dog, but she requested a reasonable accommodation to the no-pet policy.

Allegedly, the manager refused and sent her notice to vacate, attached with a news article about a death related to a pit bull, and threatened to evict her and to call animal control officers if she didn’t remove the dog. She said she provided letters from two doctors, but the manager again denied her request. She said she removed the dog, but the manager filed to evict her for keeping a “potentially dangerous dog,” and a judge ruled against her.

The resident said she made a second accommodation request with a letter from a veterinarian stating that the dog showed no sign of aggression. Allegedly, the manager again denied the request, stating “the problem is that she has chosen to get a pit bull” and that “choice of dog was completely unacceptable.” A week later, she said a canine behaviorist evaluated the dog’s temperament and found no sign of aggressiveness and that the dog exhibited very good social skills with people and another dog.

After filing fair housing complaints, the resident brought the dog back, but the manager repeatedly called animal control and tried to raise her rent and assess a pet deposit. Eventually, a court ordered her eviction. She appealed, but moved out and sued for discrimination and retaliation under fair housing law.

The court refused to dismiss the case, rejecting the community’s claim that a request to keep a pit bull was not a reasonable accommodation because it was a direct threat to the safety of others. The mere fact that the dog was a mixed-breed pit bull wasn’t enough, by itself, to show that the request to keep the dog as a support animal was unreasonable under HUD guidelines. And the resident presented evidence from her vet and the canine behaviorist that the specific animal in question didn’t pose a direct threat to others, so further proceedings were needed to determine whether allowing her to keep the dog on the premises was a reasonable accommodation [Chavez v. Aber, August 2015].

In some cases, communities have policies prohibiting certain dog breeds because of restrictions in the community’s liability insurance policy. In a 2006 memo, HUD officials specifically addressed insurance policy restrictions as a defense to refusing to grant reasonable accommodation requests involving a breed of dog that the owner’s insurance carrier considers dangerous. If the community’s insurer would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, then HUD will find that this imposes an undue financial and administrative burden on the housing provider, according to the memo. Nevertheless, the memo warned that investigators will check the owner’s claim by verifying with the owner’s carrier “and consider whether comparable insurance, without the restriction, is available on the market.”

RULE #3:

     DO Keep an Open Mind About Types of Assistance Animals

     DON’T Automatically Reject Requests for Animals Other Than Dogs

Listen to requests for any assistance animal, whether it’s a dog or cat, or something more exotic like a snake or lizard. HUD says that any type of animal may be an assistance animal. Dogs are most common, but miniature horses, capuchin monkeys, ferrets, parrots, snakes, pigs, chickens, goats, cats, hamsters, and rabbits have all been identified as assistance animals, according to the Virginia Fair Housing Office.

Don’t get confused by the stricter limits on what types of animals qualify as service animals under the Americans With Disabilities Act (ADA). With one limited exception (for miniature horses), the ADA allows only dogs that have been individually trained to perform disability-related tasks to be service animals—and specifically excludes emotional support animals.

But when it comes to housing, you must comply with federal fair housing law, which is much broader than the ADA when it comes to what types of animals that individuals with disabilities may keep in their housing as assistance animals. It covers not only specially trained service dogs, but also any type of animal that performs disability-related tasks—with or without specialized training—as well as animals that provide emotional support to alleviate one or more symptoms of a disability.

Example: In 2012, a court ruled that a university could be liable for failure to accommodate a student’s request to keep a guinea pig as an emotional support animal. Though the school argued that the ADA didn’t require the school to permit emotional support animals, the ADA’s stricter rules didn’t bar the student’s claims against the university for failure to accommodate her request for an emotional support animal under fair housing law [Velzen v. Grand Valley State University, October 2012].

RULE #4:

     DO Listen to Requests for Multiple Assistance Animals

     DON’T Arbitrarily Limit Resident to One Assistance Animal

Don’t automatically reject a request by a resident who says he needs more than one assistance animal. There’s nothing in the law to prevent an applicant or resident from requesting a reasonable accommodation to keep multiple assistance animals. For example, the resident may say that he needs two or more animals because they perform different disability-related tasks or services—or because one or more provides emotional support to alleviate the effects of an existing disability.

Example: In March 2013, a Pennsylvania landlord agreed to pay $6,000 to settle allegations that he refused to rent to a woman with a mental disability who had two cats as emotional assistance animals. In its complaint, the Justice Department alleged that the landlord refused to look at a letter from the woman’s psychiatrist requesting to allow her to keep her cats as a reasonable accommodation and indicating that the cats were therapeutic. The parties reached an out-of-court settlement, so the court dismissed the case [U.S. v. Swanson, March 2013].

Don’t deny the request for multiple assistance animals simply because you’re uncertain whether the resident has a disability or a disability-related need for the animals. If, for example, the disability is apparent, but the disability-related need for each animal is not, then follow the general rules and ask the resident to provide documentation of the disability-related need for each animal.

RULE #5:

     DO Waive Pet Deposits for Assistance Animals

     DON’T Impose Extra Conditions or Fees for Assistance Animals

Don’t impose extra conditions, such as payment of a pet deposit or extra monthly pet fee, as a condition of allowing an individual with a disability to keep an assistance animal.

Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD. For instance, communities may require applicants or residents to pay a pet deposit, but you can’t require them to pay a deposit for an assistance animal.

Although you can’t charge extra fees up front to cover potential property damage by an assistance animal, you have recourse against its owner if the animal actually causes damage to the unit or common areas. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to the resident’s unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

Federal guidelines offer an example: Because of his disability, an applicant with a hearing impairment needs to keep an assistance animal as a reasonable accommodation. The community may not require him to pay a fee or security deposit as a condition of allowing him to keep the assistance animal. However, if the resident’s assistance animal causes damage to his unit or the common areas, then the community may charge the resident for the cost of repairing the damage (or deduct it from the standard security deposit imposed on all residents) if it is the community’s policy to assess residents for any damage that they cause to the premises.

Aside from charging pet deposits, there are problems with imposing other terms and conditions on a resident who requests a reasonable accommodation to keep an assistance animal. The FHA bans communities from imposing conditions on the tenancy because the resident requires a reasonable accommodation.

Example: In July 2015, HUD charged the owners of a South Dakota community with violating fair housing law by imposing overly burdensome requirements on a resident with disabilities to allow her use of an emotional support dog.

The resident, who has a mental disability, filed the complaint, alleging that the owners initially refused to allow her to have a support animal. After she got a dog, she said they eventually granted her reasonable accommodation to keep the animal, but required her to sign a “Companion Animal/Pet Policy Agreement” that:

• Allowed the landlords to revoke approval of the animal at their “sole discretion”;
• Imposed size, weight, and breed limitations on assistance animals;
• Required that assistance animals be more than six months old at the time they are acquired;
• Allowed the landlord to enter the apartment to inspect for damage suspected to have been caused by the assistance animal; and
• Allowed the landlord to evict her for failure to comply with any of the agreement’s provisions.

Eventually, the woman said she moved out for fear of losing her housing because of her support animal. The HUD charge will be heard by an administrative law judge unless any party to the charge elects to have the case heard in federal district court [HUD v. Christensen, July 2015].

RULE #6:

     DO Require Resident to Clean Up After Assistance Animal

     DON’T Exempt Assistance Animals from Reasonable Health and Safety Rules

Although you must allow residents with disabilities to have assistance animals if they need them, fair housing law doesn’t require you to take care of them or clean up after them.

Residents with disabilities who use assistance animals are responsible for the animal’s care and maintenance, according to HUD. In its comments on pet ownership in housing for elderly and disabled individuals, HUD said that communities may establish reasonable rules in lease provisions requiring a person with a disability to pick up after and dispose of his assistance animal’s waste.

Although it’s the resident’s responsibility to care for his assistance animal, he may ask for help in walking or feeding the animal as a reasonable accommodation if, for example, his disability makes performing those tasks difficult. Each request must be considered on a case-by-case basis, but such a request would generally be considered unreasonable because it would fundamentally alter the nature of your business, which is to provide housing services, not animal care. Nevertheless, it’s a good idea to talk with the resident about alternative accommodations that would effectively meet his disability-related needs without fundamentally altering the nature of your operations, for example, by referring him to local dog-walking services for help in caring for his assistance animal.

Coach’s Tip: Communities may also enforce state and local health and safety laws related to animals, including assistance animals, which may require animals to be inoculated, or spayed or neutered. Communities may also enforce local leash laws, scooping laws, and noise codes, if applicable.

RULE #7:

     DO Look into Neighbor’s Complaints About Animal’s Conduct

     DON’T Answer Questions About Why Resident Has Animal

After granting an exception to your pet policies for an assistance animal, be prepared for questions—or complaints—from neighbors asking why they can’t have a pet when you’ve allowed the resident to have one. It could come up if you have a no-pet policy or if a resident’s assistance animal exceeds your limits on the size or type of animal allowed. And it’s often a problem when it’s an emotional support animal: If the resident doesn’t have an obvious disability, then neighbors may ask why he’s getting special treatment—or why you won’t give them the same thing.

Be careful with how you respond to questions about assistance animals. Don’t explain that the resident is disabled or that the animal isn’t a pet but an assistance animal. Federal guidelines require information about reasonable accommodation requests to be kept confidential and not be shared with anyone except those who need it to evaluate the request. Instead of answering the question directly, you could offer a neutral response, for example, that you respect the privacy of all your residents—just as you wouldn’t share information about the neighbor, you can’t share information about other residents.

You may have to take a different tack if a neighbor complains about the animal’s behavior. Take her complaint seriously—just don’t take her word for it. It could simply be sour grapes from a neighbor who doesn’t like it that the resident has a dog and claims that dog is barking all the time. Verify that it’s really happening before taking any action against the resident. Tell the neighbor to let you know when she hears the dog barking so that you can send someone over to hear it too.

On the other hand, there may be a legitimate problem with an animal’s behavior—particularly if several different neighbors are making complaints about the same problem. If you’ve verified that the animal is causing excessive noise—or that it’s responsible for property damage in the unit or common areas, then you have the obligation to address problems caused by the animal. Before taking drastic action, however, fair housing experts advise discussing the problem with the resident to explore potential solutions to stop the offending conduct while effectively addressing his need for the assistance animal.

Editor's Note: In response to Part 1 of this series, we’ve received many reader questions on assistance animals—and will cover the answers, along with some updates, in an upcoming Special Issue, Answering Your Questions on Assistance Animals.

• Fair Housing Act: 42 USC §3601 et seq.

Coach Source

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.