When Is a Landlord Required to Alter Its “No Pets” Policy?

September 27th, 2013 - Laughlan H. Clark

Under the federal Fair Housing Act (“FHA”) discrimination in housing is prohibited based on many grounds, including disability. FHA requires a residential landlord to make “reasonable accommodation” in rules, policies, practices, or services, “where such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

A situation which commonly arises is that a landlord has a “no pets” policy in its apartment complex, and a tenant, or prospective tenant, requests an exception to that policy as a “reasonable accommodation” to a disabled person. Historically, it has been fairly clear that a landlord was obligated to modify a “no pets” policy to permit a “service animal” such as a dog to assist a blind or deaf resident. However, under a relatively new interpretation, HUD (the enforcement agency for FHA) has stated persons with disabilities may request and should receive reasonable accommodation as to any “assistance animal”, including an “emotional support animal.”

So how does the landlord know when it must make a reasonable accommodation exception to its “no pets” policy?

HUD says the landlord must answer two questions:

  1. Does the person seeking to use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
  2. Does the person making the request have a disability-related need for an assistance animal?  In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to question (1) or (2) is “no”, then no modification to a “no pets” policy is required. Where the answers to questions (1) and (2) are “yes”, a modification is required.

In answering number (2) above, the landlord may request the applicant to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal is needed to do work, provide emotional assistance, etc. for the disabled person.

While it is apparent that this rule will apply to almost any type of animal which the documentation states is needed, there do appear to be some limits, such as where the assistance animal in question would pose a direct threat to the health or safety of others, or would cause substantial physical damage to the property of others.

In summary, landlords must pay close attention to requests for reasonable accommodation regarding assistance animals under FHA.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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