By Anne Secker, Attorney & Jeff Tuttle
Noland, Hamerly, Etienne & Hoss
Many landlords have a “No Pet” policy. Does that mean that a landlord can rely on that policy if a tenant requests to have a “service animal” or a “support animal”? How does a landlord determine if the tenant’s need for the service or support animal is real or just a scam to get around the “No Pet” policy?
Until now, the controlling laws (Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA)) have provided Landlords with little guidance on how to respond to Tenant requests for assistance animals. Recent guidelines issued by the U.S. Department of Housing and Urban Development (HUD), FHEO-2020-01, now help Landlords in analyzing and responding to Tenant requests to keep animals in their units. Before discussing HUD’s new guidelines, let’s define some terms:
Assistance Animals – Service vs. Support
Assistance Animals “do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.” They can be either Service Animals or Support Animals. Service Animals have been specially trained to do a task the person cannot do, such as seeing-eye dogs. Support Animals have no special training, but can provide emotional support for persons with disabilities.
Only a dog qualifies as a Service Animal. Sometimes the need for a service animal is readily apparent, such as when the Tenant is blind. Some disability-related service is less apparent, such as alerting people to allergens in the air. If the need for service is not immediately observable, a Landlord may ask their Tenant for supporting documentation and ask two questions:
(1) “Is the animal required because of a disability?” and
(2) “What work or task has the animal been trained to perform?
If the answer to (1) is yes and the Tenant identifies at least one disability-assisting action the dog is trained to perform other than emotional support, then the dog qualifies as a Service Animal. An animal providing purely emotional support does not qualify as a Service Animal, but can be considered a Support Animal, which must be reasonably accommodated under the FHA.
Support Animals can be any animal that is commonly kept in households, including a cat, a hamster, and even a goldfish, and their assistance can include emotional support. When the disability requiring a Support Animal is non-obvious and the assistance is not readily apparent, a Landlord may request supporting documentation and ask the two questions mentioned above.
When a Tenant’s need for assistance is non-obvious, a landlord may request supporting documentation, such as a note from a licensed health care professional, including a physician or psychologist, establishing a connection between an individual’s disability and the need for an Assistance Animal.
HUD advises that documentation from the internet, such as an “emotional support certification,” is typically not sufficient by itself to reliably establish an individual’s need for an Assistance Animal. In many cases, a lack of reliable documentation constitutes reasonable grounds for denying a Tenant’s accommodation request.
Landlords should follow these new guidelines in order to assess reasonable accommodation requests effectively. The full text of FHEO-2020-01, including further guidance to Landlords, can be found at https://www.fairhousingnc.org/document/hud-assistance-animal-guidance-1-28-2020/.
This article is intended to address topics of general interest and should not be construed as legal advice.
© 2020 Noland, Hamerly, Etienne & Hoss