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Assistance Animals: Your Most Pressing Questions, Answered

by Lerner, Hank on

Over the past couple of years PAR has fielded dozens and dozens of PAR Legal Hotline calls asking about how landlords should handle tenant requests for assistance animals.

The good news is that the U.S. Department of Housing and Urban Development released comprehensive guidance for landlords at the beginning of 2020. It’s a very thorough document that walks you through all the questions to ask and how to deal with the answers you get from tenants.

The bad news is that the document itself is 19 pages long. I know it can be a challenge to read long detailed documents.

That’s why PAR has developed a new flowchart-style guide that lays out how to handle requests for reasonable accommodations regarding assistance animals. It’s snazzy, and oh-so-helpful, but no legal article would be complete without some warnings and disclaimers.

Issues around assistance animals are complicated. This flowchart is a first step for understanding a landlord’s duties, but it’s not the last word. Every box on the electronic version of the chart links to the page in HUD’s guidance with more detailed information.

Use. The. Links.

And when you have a landlord who you think isn’t following the rules, be sure to send them to their own attorney for further guidance before turning down any request. What’s the risk if you just go by the seat of your pants? According to the most recent national statistics, in 2020 almost 73% of all discrimination complaints involved rentals, and just under 55% of all discrimination complaints involved alleged discrimination based on disability. So…do the math – this is the sweet spot for fair housing complaints.

To save you some time and a phone call based on questions we know this chart will raise, here is a brief Q&A for your further reading pleasure.

Q: Since we’re dealing with an animal, can the landlord…

A:  No. Don’t even finish the question.

As far as you’re concerned, this isn’t an animal at all. Landlords should think of an assistance animal in the same way as any other assistance device like a wheelchair or a cane. Whenever you find yourself saying something about banning or restricting assistance animals just substitute “wheelchair” in the sentence and see if it makes sense.

Or since failure to allow an assistance animal could be considered discrimination based on the protected class of disability, imagine substituting some other protected class (perhaps one you belong to) in that sentence.

Q: Wait…what?

A:  Seriously – it works. For example:

The landlord cannot charge a “pet deposit” or some sort of rent surcharge for the privilege of having an assistance animal. (Imagine: “Rent is $1000…plus the wheelchair surcharge, of course.”)

The landlord cannot enforce a “no pets policy” to deny an assistance animal. (Imagine: “Sorry, we have a strict no-<insert religion> policy.”)

The landlord cannot use the presence of an assistance animal to make any sort of decision about continued occupancy. (Imagine: “We would have renewed your lease, but the neighbors get nervous around <insert race/ethnicity>.”)

Q: But animals cause damage. Isn’t there anything landlords can do to protect themselves?

A:  Yes. Landlords can impose and enforce reasonable rules that apply to everyone equally without regard for the presence of the assistance animal.

For example, tenants are always responsible for physical damage to the property (beyond normal wear and tear). If an assistance animal puts a hole in the drywall, the tenant can be charged to fix it just the same as if the tenant made the hole. But the landlord can’t have a blanket policy to charge tenants for carpet cleaning or repainting any time an assistance animal is in the property; they could only charge for those sorts of things if there is actual damage and it goes beyond regular wear and tear on the property.

Q: My landlord is SO MAD that this tenant did the WHOLE application process and NEVER told us about her assistance animal until after she signed the lease. That’s illegal, right? Or maybe we can terminate the lease because she lied on the application?

A:  No and no.

There is no requirement for tenants to disclose their need for an assistance animal during the application process, because landlords shouldn’t be considering anything about the assistance animal during the application process. Most of these calls boil down to some version of “If they’d known from the start the landlord probably wouldn’t have… um… I mean… since they don’t want animals… ah… right – I see now.”

Or to put it another way, since assistance animal = disability = protected class, let’s just do one of those substitute sentences. Instead of saying “The landlord wouldn’t have rented if they knew the tenant had an assistance animal,” change it to “the landlord wouldn’t have rented if they knew the tenant was <insert race/ethnicity>.”

Q: But what if the tenant actually lies to us about their medical conditions and/or the need for an assistance animal?

A:  Pennsylvania implemented the Assistance and Service Animal Integrity Act in 2018. The act provides some additional clarity to state anti-discrimination laws and makes it a criminal offense to misrepresent one’s disability and/or one’s entitlement to a service or support animal. This might include things like making false claims about a disability and providing a fill-in-the-blank online form rather than a document from a legit professional with first-hand knowledge of the tenant’s condition and needs.

Q: The landlord really doesn’t want animals, so how can you help me get around these rules?

A:  This was a real question – pretty much a direct quote, though we’ve had many others with a similar gist.

Your job as a licensee and a Realtor® is to help your clients to comply with the law, not to find them creative ways to avoid the law. If your client’s instruction is “I don’t want to, so I need you to help me get around that law,” then you might consider whether this is a client you still want to work with. Have I mentioned how many fair housing complaints involve disability discrimination in rentals? “I was just doing what the client asked” will not be a defense, and the bad publicity (and potential payouts) from such a complaint probably won’t be good for business.

PAR also has a Fair Housing resource page.

Topics

Fair housing Assistance animals
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Comments (6)

Comments

  • Denise Rogers    April 1, 2022 | 8:43 am

    One question remains concerning this subject that is a combination of two asked in this article. What if a tenant signs a lease making no mention of an assistance animal and does not have a legitimate document stating the need for an assistance animal?

    Reply to Denise Rogers
    • Lerner, Hank    April 1, 2022 | 2:44 pm

      I’d say that this is really just one question – what if there’s a potential assistance animal but the tenant doesn’t follow the necessary steps to support their request? The answer is the same whether the request is made before the lease is signed, after the lease is signed but before the animal is brought into the property, or even after the animal is there. In any scenario the same basic questions need to be asked (from the chart and the HUD guidance), and the tenant needs to have appropriate responses by providing information and/or documentation that meets the standards in the guidance. If the tenant does NOT have appropriate responses/documentation then the landlord does not need to make any accommodation and does not have to treat it as an assistance animal.

      But it can be really dicey to make the determination of when a tenant’s answers are not sufficient, which is why we really need the property managers and landlords to read the detailed information in the underlying HUD document and talk to local counsel before making a final decision.

      Reply to Lerner, Hank
  • Lynne Moskol    April 1, 2022 | 12:44 pm

    Is there a specific criteria for determining an animal is actually an assistance animal—like a certificate?

    Reply to Lynne Moskol
    • Lerner, Hank    April 1, 2022 | 2:48 pm

      Short answer: no. The tenant must provide information that “reasonably supports” that there is a disability and that the animal provides some sort of support for that disability. There is no specific rule on exactly what that documentation must include and who it must come from. You can find some general information about that in pages 11-12 of the HUD guidance…and to prove how tricky it can be there’s also a 4 page appendix just on this topic. (Have I mentioned how important it is to read the underlying document and not just rely on the chart?)

      Reply to Lerner, Hank
  • Mary Hall    April 1, 2022 | 9:25 pm

    Thank you for addressing this thorny issue. I’ve had countless conversations around this topic. My argument has been what you stated here – an applicant doesn’t have to disclose a disability during the application process. Period. They wouldn’t disclose blindness, hearing impairment, use of a wheelchair so why would they have to disclose a legitimate assistance animal? Now as to whether it’s legit … that’s a whole other topic. What are my responsibilities when representing the tenant applicant as far as verifying validity of the assistance animal?

    Reply to Mary Hall
    • Lerner, Hank    April 2, 2022 | 9:01 am

      Interesting question. Remember that your duties in this scenario are to your tenant client and not the landlord. If your tenant client has told you they have an assistance animal your best approach is to ensure that you can provide them with the resources to understand how they need to communicate that to the landlord. Perhaps referring them to a nice little flowchart and a HUD resource with basic information about the issue? You might also refer them to a local fair housing agency if they have any questions or concerns about how to support their request. But it’s not your job to “pre-approve” (or reject) a request – even moreso because the landlord’s response may sometimes be based on information you don’t have.

      That said, you do also have a general duty to be honest with all parties in a transaction. Imagine a tenant client who said something like “don’t worry if you find me a place with a no pets policy – I’ll just grab a certificate from the internet and pretend it’s an assistance animal.” Treat that client the same as a buyer who asks you to lie about their financials or a seller who knowingly misrepresents the property on their seller disclosure form and consider terminating the relationship so you’re not dragged into the issues they are creating.

      Reply to Lerner, Hank

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