Assistance Animals: Dos and Don'ts
Lawyers sometimes have to tell clients things the clients don’t want to hear. Having to tell a landlord he or she can’t set the rules at the landlord’s own property is one of those situations. To be clear, landlords have the right to set most of the rules at their rental properties. But not all.
The concept of assistance animals is one of those instances where the law ties a landlord’s hands. For the most part, no matter what a property’s rules are or what a lease says, the landlord must entertain and often accept assistance animal requests from qualified tenants or prospective tenants.
What is an assistance animal?
An assistance animal is an animal—any kind of animal (assistance animals need not be dogs)—that works, provides assistance, or performs tasks for the benefit of a person with a disability. This can include simply providing emotional support for a disabled person that alleviates an identified symptom of the person’s disability.
An assistance animal does not need to have special training, although some certainly do. An animal does not need any special certifications or registrations. There is no government-sanctioned registry of assistance animals.
When is someone entitled to an assistance animal?
Under federal fair housing laws, a tenant or prospective tenant’s request for an assistance animal is considered a reasonable accommodation request with all of the attendant tenant rights and landlord obligations. Specifically, HUD tells us a prospective or current tenant has the right to an assistance animal if two requirements are satisfied:
The requesting person must have a disability and
The person requesting the assistance animal must have a disability-related need for the assistance animal.
Step 1: Is the requesting person disabled?
A disability in this context is a physical or mental impairment that substantially limits one or more major life activities. If the person’s disability is not readily apparent, landlords may ask for reasonable documentation of the disability. A landlord should avoid being picky about what sort of documentation the landlord views as acceptable. A generic, written note from a care provider is sufficient.
Step 2: Does the requesting person have a disability-related need for the assistance animal?
A landlord may ask for reasonable documentation of a requesting person's disability-related need for an assistance animal if the person's disability-related need is not readily apparent. In most cases a note from a care provider that the animal “helps” the person deal with X condition should probably be considered sufficient.
Landlords should avoid placing themselves in a situation where they are requesting a person's medical records or scrutinizing to closely records provided. I often advise, in close cases, to err in favor of the requesting person.
What is the difference between an assistance animal and a service dog?
A “service dog” is a specially trained dog. The Americans with Disabilities Act extends special protections to service dogs in public places. An assistance animal, however, is a different thing. Assistance animals receive protection in relation to private housing accommodations under federal fair housing laws.
What can I charge for an assistance animal?
Nothing. You may not charge a “pet deposit” or “pet rent.” With that said, however, tenants with assistance animals will still be responsible for damage beyond ordinary wear and tear the animal causes.
Can I impose breed, size, or weight restrictions on assistance animals?
In most cases, no. A Great Dane or a Pitbull can be an assistance animal just as well as a Chihuahua. A landlord may only turn away an assistance animal in two, limited circumstances: The first is when the animal, itself, poses a direct threat of harm to others. The second is when the animal would cause substantial physical damage to the property of others.
Do not attempt to rely on either of these exceptions unless you have both (a) done an individualized assessment of the animal in question and (b) you have gathered objective evidence of the specific animal’s conduct supporting the exception on which you intend to rely. Remember to document everything.
Are there any official assistance animal certificate programs or registries?
As a landlord you may from time to time receive official-looking certificates showing that a certain animal is “registered” or “certified” as an assistance animal, service animal, or emotional support animal. There are no government-sanctioned registries or certificates. There are many for-profit companies out there that send “certificates” or “registrations” in exchange for a fee. Accordingly, I often advise clients to view such certificates as neither evidence for or against a person’s entitlement to an assistance animal.
Conclusion
Be cautious with assistance animal requests. Make sure managers and leasing agents understand the concept of assistance animals and what they can and cannot do when faced with an assistance animal request. Keep in mind also that requests for assistance animals—like other types of reasonable accommodation requests—need not be in writing. Develop and implement policies and procedures to ensure your bases are covered with respect to documentation of and timely follow up to assistance animal
requests.
