Brush up Your Contracts Regarding Service Animals
Whether or not you permit tenants to have pets, you may want to brush up your lease language so that it includes information regarding service animals, as they are treated differently than pets.
Among other protections, the Fair Housing Act (FHA) makes it unlawful for a landlord to discriminate against or refuse a ‘reasonable accommodation’ for a person living with a disability. In order to have equal opportunity to enjoy and use a dwelling, landlords must consider all applicants including those that have special housing accommodation needs.
One common question landlords ask is, “I have a no pet policy, do I still need to consider these tenants?” Regardless, service animals are not pets. They are animals that do work, perform tasks, assist and/or provide therapeutic emotional support for persons with disabilities.
Under the Fair Housing Act, a person with a disability may make a reasonable accommodation request at any time. The landlord must consider the reasonable accommodation request even if the resident made the request after bringing the animal into the housing unit.
What types of service animals qualify?
Service animals—categorized as working animals that have been trained to perform tasks that assist disabled people.
Support animals—categorized as trained or untrained animals that do work, perform tasks, provide assistance and/or provide therapeutic emotional support for persons with disabilities.
Any animal that does not qualify as a service animal or a support animal is a pet for purposes of the Fair Housing Act and may be treated as a pet for purposes of the lease and house rules. A landlord may prohibit or charge a fee or deposit for pets at his/her discretion except for service animals. A landlord may also charge a tenant for damage a service animal causes if it is the landlord’s usual practice to charge for damages caused by tenants. A landlord may deduct the damage from a tenant’s security deposit as long as that is a normal practice.
Requests for a service animal should be evaluated on a case-by-case basis without general assumptions about certain species or breeds. Landlords who have been asked to provide a reasonable accommodation may only ask the person making the request two questions:
Is the animal required because of a disability?
What work or task has the animal been trained to perform?
The Fair Housing Act requires an exception to a no pets rule. You may not ask about the nature or extent of the person’s disability, and in some cases, you are not permitted to ask for documentation. Landlords cannot refuse an accommodation as the Fair Housing Act preempts state and local law.
Documentation you may or may not request
Does the person have an observable disability or does the landlord already have information giving them reason to believe that the person has a disability? In this instance, you are not permitted to request documentation. However, certain impairments, especially those that may form the basis for a request for an emotional support animal, may not be observable. In those instances, you are permitted to request information regarding both the disability and the disability-related need for the animal, but you are not entitled to know the person’s diagnosis.
Reliable documentation of the disability and disability-related need for the assistance animal is required if the disability is not known or not readily apparent. An example of this type of documentation is usually a letter from a medical professional or treatment therapist who can establish the disability and need for the service animal. The landlord may not ask for access to medical records.
Information about the disability may include:
A determination of disability from a federal, state, or local government agency
Receipt of disability benefits or services Social Security Disability Income, Medicare or Supplemental Security Income for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency
Eligibility for housing assistance or a housing voucher received because of disability
Information confirming disability from a health care professional (physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse)
Information confirming disability-related need for an assistance animal may include:
Information from a licensed healthcare professional (physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse) general to the condition, but specific to the person with a disability and the assistance or therapeutic emotional support provided by the animal
A relationship or connection between the disability and the need for the assistance animal must be provided, particularly in the case where the disability is non-observable, and/or the animal provides therapeutic emotional support
The landlord is not required to grant the accommodation unless this information is provided, assuming the person has been provided a reasonable opportunity to do so. The Fair Housing Act requires a landlord to allow a reasonable accommodation involving an assistance animal in situations that meet all the following conditions:
A request was made to the landlord by or for a person with a disability
The request was supported by reliable disability-related information, if the disability and the disability-related need for the animal were not apparent and the landlord requested such information, and
The landlord has not demonstrated that:
Granting the request would impose an undue financial and administrative burden on the landlord
The request would fundamentally alter the essential nature of the landlord’s operations
The specific assistance animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat
The request would not result in significant physical damage to the property of others despite any other reasonable accommodations that could eliminate or reduce the physical damage
How it’s different from the ADA
The Americans with Disabilities Act (ADA) is not the Fair Housing Act (FHA). Changes to the ADA have no effect on the FHA. In fact, the ADA has little to do with housing at all. The ADA deals with civil rights in public accommodation in public places such as businesses, restaurants, buses, etc. The FHA, on the other hand, deals specifically with housing.
Under the ADA, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
Under the FHA, it does not matter what you call them (service animals, support animals, companion animals, therapy animals, working animals, etc.). If the animal exists to serve a person’s disability, it is not legally a pet and may not be treated as such. That means no pet fees, pet deposits or pet rent. Housing providers (landlords, homeowners associations, home insurers, etc.) may not restrict such animals by breed or species in housing. One may not be asked or required to provide proof of training or certification for such animals in housing.
To be compliant in your lease agreement and when communicating with potential tenants with disabilities that require service animals, consult with your real estate attorney to make sure you are in compliance. Here are a few additional resources to help you learn more:
https://usserviceanimals.org/blog/service-animal-laws-in-pennsylvania/
https://www.disabilityrightspa.org/wp-content/uploads/2018/03/ServiceAnimalsInHousingFEB2018.pdf