The Fair Housing Act (“FHA”) is a federal law that prohibits landlords from discriminating based on disability, race, color, national origin, religion, sex, and familial status. The Americans with Disabilities Act (“ADA”) prohibits discrimination against people with disabilities in employment, transportation, public accommodations, communications, and state and local government activities. Both laws contain provisions which address the use of service or assistance animals by people with disabilities. While the FHA covers nearly all types of housing, some types of housing, such as public housing, are covered by both laws. Under the FHA, housing providers are obligated to permit, as a reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with a disability, or provide emotional support to alleviate a symptom or effect of a disability.
The FHA states any person with a mental or physical disability cannot be turned away from housing with their certified service animal or emotional support animal. This includes buildings and apartments that have a “no pets policy” in place. Pet restrictions cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal because of their disability. An assistance animal is not considered a pet.
According to the US Department of Housing and Urban Development, a landlord must consider two threshold questions when a tenant asks for accommodation for a companion service animal:
- Does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities?
- Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to either question (1) or (2) is “no,” then the law does not require a modification of an existing “no pets” policy, and the reasonable accommodation request may be denied.
However, if the answer to one or both of these questions is “yes”, the landlord must modify or provide an exception to a “no pets” policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.
The request may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; or (2) the specific service animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. Breed, size and weight limitations may not be applied to an assistance animal. Breed, size and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an objective assessment about the specific animal’s behavior and cannot be based on speculation or fear about harm or damage an animal may cause.
A landlord my not do any of the following in connection with leasing a property:
- Require a tenant to pay extra rent or security deposit for having an assistance animal;
- Inquire as to the nature or extent of a tenant’s disability;
- Require a tenant to provide documentation showing a disability or disability-related need for an assistance animal if the disability is readily apparent or already known;
- Require a tenant to provide the landlord with access to a tenant’s medical records or medical providers;
- Require a tenant to register the assistance animal;
- Require the animal to have any specific training; or
- Refuse to house a tenant because the landlord’s insurance does not cover assistance animals.
Be aware that a landlord does have the right to require a tenant to pay for any damages the assistance animal may cause to a property and can also evict a tenant due to unruly or out-of- control behavior from an assistance animal.
Service Animal or Emotional Support Animal?
Certified Service Animals are dogs that are highly trained to do a specific task or service for the disabled person. The service can be anything from helping the person navigate through public places, to alerting them to an oncoming seizure or low blood sugar.
Emotional Support Animals do not need any specialized training and are there to provide comfort and love. Emotional support animals can be dogs, cats, birds, rabbits, lizards, etc. People may use all sorts of animals to give them the emotional support they need.
Under the FHA, a landlord has the right to ask for proper documentation for the emotional support animal to prove a tenant is in need of its service. This document may come in the form of a letter from a mental health professional such as a physician, licensed therapist, psychologist, or psychiatrist, stating that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.
Penalties for Noncompliance
If a landlord refuses to comply with the law, the tenant has the right to sue the landlord and/or property manager for discrimination. The tenant may also report and file an official complaint against the landlord/property manager with the United States Justice Department or HUD.