Did you know that companion animal rules also apply to persons who are associated with the tenant?
A Nevada landlord is facing discrimination charges after telling his tenants that a frequent visitor could not bring his emotional support dog onto the rental property.
Recently, there have been a number of news stories regarding landlords who have been accused of discrimination because of their pet policies.
These cases highlight confusion over the companion animal rules. Part of that confusion stems from the fact that these situations are resolved on a case-by-case basis, making it more difficult for landlords to adopt a uniform policy.
Here are some commonly asked questions and answers concerning companion animals:
Do small landlord businesses have to follow the companion animal rules?
Companion animal laws come from both the federal Fair Housing Act and its prohibition against discrimination on the basis of disability, and from state and local laws that do the same thing. According to HUD, the FHA applies to most landlords, except those properties which are owner-occupied with four or fewer units.
The state rules are usually more strict. For instance, a state may only exempt owner-occupied properties. It’s important to find out if there are any state or local laws regarding companion animals.
When a local housing authority is investigating a charge of discrimination, they often rely on regulations interpreting the FHA, so it’s important for all landlords to know those rules, too.
HUD is the agency of the government that oversees the FHA. The Department of Justice is also involved in prosecuting FHA cases. Companion animals are considered a “reasonable accommodation” for a person with a disability.
When a tenant or rental prospect complains about discrimination, the landlord may not know about it right away. It is common for the housing agency or for HUD to send in fake applicants called testers to try to catch the landlord in the act of discrimination. These testers will adapt a profile — like a disabled person with a companion cat, and record the communications between the landlord and tenant.
It is critical for a landlord to know how to deal with companion animal requests, and to treat all requests in the same way.
What is a companion animal? Is it the same as a service animal?
A companion animal is an animal that is prescribed for a tenant with a disability to treat the disability, including helping the person cope with the disability. While technically that’s not the same thing as a service animal, under the Fair Housing rules, the distinction does not matter — both have to be allowed into the rental property if prescribed for a tenant with a disability to assist with that disability.
While this distinction isn’t important to HUD, it is very important to a landlord. While service animals may undergo rigorous training which includes the socialization skills the animal needs to live in a rental environment, a companion animal may not receive any training at all.
There appear to be no restrictions on how the tenant chooses the individual animal, or what type of animal the tenant can choose.
However, it is illegal for a landlord to question the tenant regarding the training level of the companion animal.
Can anyone “prescribe” a companion animal for the tenant?
The fair housing rules provide great leeway regarding who can prescribe a companion pet. The person does not have to be a doctor. They simply need to be “qualified to treat the disability”, and the animal must be useful in the treatment of the disability, typically by providing emotional support. There are no specific licensing requirements or skills that the person must possess.
What do you do when another tenant is allergic or has asthma?
HUD suggests looking at these situations on a case-by-case basis. A landlord is not allowed to deny a request for a companion animals based on fears that this situation may occur in the future. If faced with an actual situation, the landlord who denies the request for the animal still may be investigated for discrimination. The landlord can raise defenses at this point, including documentation proving that the other tenant would be harmed, would have to move out, or that the landlord would suffer some specific financial hardship if they grant the request for the animal.
Can I charge a pet deposit or pet rent to cover the damage the pet may cause?
No. The companion animal is not considered a pet, therefore the landlord cannot charge any addition funds — a deposit, higher rent, pet rent, or change the conditions of the lease for the tenant with a disability who requests a companion animal.
Can I apply my pet rules to the companion animal?
The landlord must modify any existing pet policies, whether a “no-pets” policy or restrictions on the type, size or other factors regarding the pet. The companion animal is legally not a pet.
However, local or state rules which govern animals in residences likely still apply. This means that if your city has a ban on pit bulls, the companion animal cannot be a pit bull. (One local HUD division representative indicated that they have received complaints from tenants who wish to have pit bulls as companion animals.)
If the city or state regulates the number of animals, or the animal’s droppings violate the law, HUD’s position so far has been that the landlord does not have the right to waive those local laws — only their own policies.
Can I deny the request for a companion animal?
The landlord can deny the request if the person making the request is not legally disabled, if the animal is not prescribed for treatment of that specific disability, or if keeping the animal creates an undue burden, like harming others, forcing the landlord to break the law, or causing a significant financial burden the landlord.
Landlords must be very careful not to apply their own standard on determining whether a companion animal is justified. An Oregon landlord was sued for denying a request for a companion dog consistent with a no-pets policy. The tenant suffered from depression, post-traumatic stress disorder, arthritis and fibromyalgia. The landlord told the tenant that a dog would only be justified if she were blind; however, he would allow her to have a fish or a bird.
Can I require documentation before I decide whether to allow the animal?
If the disability is obvious, and therefore the need for the animal is obvious, a landlord is warned not to ask for specific documentation or otherwise burden the tenant.
However, if the disability is not obvious or not known, the landlord can ask for simple verification of the disability and the need for the animal as treatment if that link is not obvious. For instance, if a tenant who is in a wheelchair asks for a companion animal, the link between the disability and the animal may not be obvious. In that situation, the landlord could ask for some verification.
A letter from the person treating the disability stating the animal is necessary is considered sufficient documentation.
What do I do if the animal causes damage?
HUD’s position is that any other remedies that are available under the lease agreement generally will be enforceable. That means that the landlord should be able to deduct damage from the general security deposit, or pursue a tenant for the damage in court, regardless of that person’s disability.
The tenant is generally expected to clean up after the animal and provide for its day-to-day care, subject to any local laws regarding the care and maintenance of an animal.
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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.
