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Residential Landlords’ Guide to Assistance Animals

By Elizabeth Whitman | June 4, 2018

News reports recently have included much discussion about The Air Carrier Access Act and FAA regulations governing assistance animals on airplanes.  The Fair Housing Act (FHA) applies to landlords to accommodate tenants with assistance animals.

Adopted in 1968, Congress amended the FHA in 1988 to prohibit housing discrimination based upon disability. Under the FHA, landlords must provide reasonable accommodations to disabled individuals. This includes allowing those individuals to use assistance animals.

Assistance Animals are Not the Same as Pets

Unlike pets, assistance animals either provide specific services or emotional support for disabled individuals. Examples include guide dogs for the visually impaired, service dogs trained to alert individuals about an impending seizure or hypoglycemic episode, alert dogs for the hearing impaired, and emotional support animals that reduce symptoms of a disability.

Landlords should treat all tenant requests for disability accommodation, including requests for assistance animals, the same. Specifically, landlords should evaluate the following:

  1. Whether the tenant has a disability.
  2. Does the animal provides tasks, services, or assistance or emotional support to the tenant?
  3. Do the animal's tasks, services, or assistance alleviate at least one symptom of the tenant’s disability?

If the answer to all of the questions is yes, then the landlord generally must allow the assistance animal at no additional charge. If the answer to either question is no, then the landlord may exclude the animal.

When Can a Landlord Ask for Documentation of the Need for an Assistance Animal?

Under the FHA, a disability is a physical or mental impairment that substantially limits at least one major life activity. If the tenant’s disability is not readily apparent, the landlord may request that the tenant provide documentation of the disability. Examples include a letter from a licensed physician or mental health provider. Landlords may not ask for documentation if the tenant’s disability is obvious. Landlords also may not ask for documentation if the landlord already knows about the tenant's disability. Making a request under those circumstances might, itself, be harassment or disability discrimination.

Likewise, if the need for the assistance animal is not readily apparent, the landlord may request that the tenant documentation supporting that need. That documentation might be a letter from a licensed physician or mental health professional.

Landlords may not charge a pet deposit or additional pet fee or “pet rent” for assistance animals. However, landlords can make tenants pay for damage caused by their assistance animals. Landlords also may not exclude an assistance animal based upon species, size, or breed restrictions they impose on pets.

When Can a Landlord Deny a Request for an Assistance Animal?

A landlord, however, may deny a specific assistance animal if it poses a direct threat to the health or safety of others or would cause substantial physical damage to the property. Landlords may not make assumptions about an animal based upon its size or breed or experience with other animals. Rather, the decision must be based upon evidence specific to the animal in question.

For instance, if a particular animal has repeatedly caused major damage to the carpet in the rental unit or common areas, it might be excluded because it has caused damage to the property. Likewise, an animal that has bitten a resident, or barks and disturbs other residents for hours on end every night might be excluded. Before excluding a specific animal, the landlord attempt to find another reasonable accommodation. Only if there is no reasonable alternative that would reduce or eliminate these risks may the landlord exclude the animal.

The FHA applies to most, but not all, residential landlords. “Fair Housing Act Primer for Multifamily Owners,” discusses residential landlords’ obligations under the FHA. The article also describes the exceptions to the FHA.

Landlords may be subject to additional requirements regarding assistance animals. Certain common areas of apartment buildings are subject to the Americans with Disabilities Act. And landlords that receive HUD subsidies have additional requirements.  State and local laws may impose greater obligations than the FHA.

Landlords should consult their state or local fair housing office, apartment association, or a real estate attorney for information to learn what laws apply to their particular properties.

Elizabeth Whitman is an attorney and broker who has represented clients in more than $1.3 billion in real estate transactions.Elizabeth's law firm, Whitman Legal Solutions, LLC, is located in suburban Washington, DC and represents real estate owners and securities sponsors throughout the nation.
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