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As the owner of a rental property, you will be making numerous policies that will impact your tenants. For example, many landlords do not allow smoking on their property and opt to not rent to smokers. This is well within your legal rights as a landlord. Another common policy relates to pets. Many landlords determine their rental will have a no-pet policy. Opting to not rent to pet owners is 100 percent legal. However, things become more grey for many landlords when the topic of a service animal, assistance animal or emotional support animal is brought up.
Can I deny a pit bull as a service animal? Can I require a tenant with a service animal pays a pet fee? These, as well as many other questions, surround the topic of animals in rentals. If you have ever wondered what your rights are as a landlord and what legal repercussions there are for skirting service animal laws, read on to understand more about the regulations surrounding service animals.
Understanding The Difference Between Service Animals and Assistance Animals
First, it is important to truly understand the differences between the language surrounding service animals. Many landlords easily recognize a service animal that has been trained to do specific tasks. For example, if an applicant is blind and uses a guide dog, very few landlords would argue the legitimacy of the service animal’s presence.
However, when it comes to assistance animals, also referred to at times as an emotional support animal, the debate becomes more heated. According to HUD, the following describes the criteria of an assistance animal:
“An assistance animal is not a pet. It is an 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. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 requires an assistance animal to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals.”
By this definition, an assistance animal can fall under a much broader classification. Concrete examples of assistance animals could include the following:
- A cat that helps to alleviate someone’s debilitating depression
- A dog that relieves someone’s anxiety
- An animal that assists with reducing a person’s stress-induced pain
ADA Versus HUD
Much of the confusion on the differentiation between service animals and assistance animals and the regulations surrounding it have to do with the differences between Americans With Disabilities Act (ADA) regulations and Housing and Urban Development (HUD) regulations.
While ADA regulations apply to establishments such as restaurants and stores, housing falls under HUD regulations. ADA has much stricter guidelines on what is considered a service animal, which is where much of the confusion for landlords derives from. For example, the ADA does not include any animal other than dogs in the following definition:
“A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.”
When this new and stricter definition came out from ADA, HUD responded with a memo stating:
“The DOJ’s new rules limit the definition of “service animal” in the ADA to include only dogs. The new rules also define “service animal” to exclude emotional support animals. This definition, however, does not apply to the FHAct or Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504.“
Many landlords falsely try to enforce ADA regulations in rental housing, which leads to confusion for all parties involved. While landlords may find the broader definition from HUD to be unfair, the difference exists for a reason. While a person can opt to not eat out at a restaurant, they cannot be expected to live 24/7 in their home without their assistance animal. The HUD regulations exist to protect people from discrimination as housing is considered a basic human right.
Breed Restrictions & Insurance Policies
When it comes to service animals that fall under specific breed restrictions, the rules do not change. This means that if someone has an assistance or service animal that is a pit bull, you cannot deny them due to the breed.
For example, check out this pit bull that was trained to protect his owner’s head during a seizure by placing his body under her as a cushion:
This leads to two important facts:
- Landlords can’t do things differently for people with service animals. This includes charging fees or requiring insurance.
- Landlords can’t use their own insurance carrier’s policy as an excuse to not allow a breed. If you are running into issues with your insurance provider, they could be in violation of federal civil rights laws prohibiting discrimination based upon disability. You can read more about how these cases will be investigated by HUD in this memo.
If a tenant requests accommodation for their service or assistance animal, there are cases where you can ask for documentation. Whether or not you can ask for documentation comes down to one question, “Is the disability obvious or apparent?” If the answer is yes, you cannot ask for documentation. If the answer is no, you can.
If for example, someone is blind and has a service animal who helps guide them, you cannot ask them for documentation. However, if someone has an assistant cat that helps them in a way you cannot discern, you are allowed to ask for documentation.
Acceptable documentation includes a note written by a doctor, a PA, a psychologist, a social worker, a peer support group, a non-medical service agency or a reliable 3rd party that would be aware of the condition and attests to the need of the individual.
It is important to note, that according to HUD, the medical provider does not have to provide a specific diagnosis, they can use a general description such as “mental condition.” This is to protect patient privacy.
When Landlords Take Matters Into Their Own Hands
When landlords do not abide by the regulations surrounding service and assistance animals, things can become costly quickly. For example, you can read this story about how a federal jury returned a $37,000+ verdict against a landlord who charged a $1000 pet fee to someone with a service animal.
To guard yourself against a lawsuit of this nature, be sure you understand the laws thoroughly. Consult with a local attorney when in question, and never assume you can “get away” with discrimination.
For further reading regarding service and assistance animals, check out these helpful articles.
DISCLAIMER: Turbo Tenant, LLC does not provide legal advice. This material has been prepared for informational purposes only. All users are advised to check all applicable local, state and federal laws and consult legal counsel should questions arise.