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Can a landlord charge a pet security deposit for a service animal?

By: Douglas K. Marsico, Esq. on in  | 

A landlord has an appointment to show an apartment to a potential tenant. Upon meeting the tenant outside the apartment, the landlord observes that the tenant has a service dog. The tenant explains that the dog aids him in dealing with a hearing disability. The landlord advises that while she normally has a “no pet” policy, in order to accommodate the tenant’s disability, she would allow the service dog. However, the landlord explains that the tenant would need to pay a pet security deposit. Has the landlord violated fair housing laws by requiring a pet security deposit?

In answering the question, let’s start with the basics. The Federal Fair Housing Act prohibits discrimination in housing on the basis of a disability. Disability discrimination occurs if a landlord refuses to make a “reasonable accommodation” in rules, policies, practices or services when such accommodation is necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. A “reasonable accommodation” is a change, exception or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

So in the above example, the landlord is willing to make a reasonable accommodation due to the tenant’s disability by making an exception to the “no pet” rule.  So far, so good. The landlord, however, is understandably concerned about the service dog since it is still a dog and dogs do what dogs do. Dogs have accidents. Dogs scratch at doors. Dogs get sick. Dogs get fleas. Dogs gnaw on things. Funny, as I was typing that, I forgot if I was writing about dogs or my kids…well, except for the fleas, I hope.  Anyway, it certainly sounds reasonable for the landlord, in special consideration of allowing the dog, to negotiate an extra fee to serve as a “pet deposit.” Indeed, isn’t the landlord treating the disabled tenant the same way as she would treat any tenant who requested an exception to the no pet rule?

Unfortunately, the landlord, despite her good intentions, is in violation of fair housing laws by charging the extra fee for the reasonable accommodation.  In 2004, a Joint Statement of the Department of Housing and Urban Development and the Department of Justice, stated that charging an extra fee or requiring an additional deposit from a disabled tenant as a condition of granting a reasonable accommodation violates the Fair Housing Act. If the service animal causes damage to the premises, the landlord may seek recovery of those damages from the disabled tenant or out of the security deposit. But, charging fees or an additional deposit in anticipation of potential damage is not allowed.

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Comments (11)

Comments

  • Andrew Wetzel   October 10, 2013 at 11:44 am

    Not to sound like an attorney BUT, what does a prospective tenant need to do to prove the need for a service animal? I had a woman contact me about a rental. She asked about pets and I told her there was a “no pet” policy. Her mother contacted me for a showing (I was not told why the daughter did not attend). The mother mentioned that the daughter needed the use of a dog but did not offer any explanation. They did not request an application but what if they had applied?

    Reply to Andrew Wetzel
    • Frederick Morgan   June 11, 2016 at 9:30 am

      Unfortunately you cannot ask. Service animals can be trained by their owners or by a professional trainer. There are no requirements for a service animal and you are not allowed to ask what disability the animal helps with. If the dog is labeled a service animal, end of story.

      Reply to Frederick Morgan
  • Doug Marsico   October 10, 2013 at 4:32 pm

    Andrew,
    A landlord cannot ask if a prospective tenant has a disability unless the prospective tenant requests a reasonable accommodation. However, upon request for a reasonable accommodation, the landlord may inquire as to the nature of the disability and the necessity of the reasonable accommodation. I would think that discussion could naturally lead into asking for some documentation that the animal is indeed a service animal needed for the person’s disability. Unless it is plainly obvious (picture blind man with a cane), I do not think the landlord needs to just take the tenant’s word for it. Indeed, often the disability is not obvious nor is the fact that the animal is a service animal (think chihuahua as emotional support animal).

    Reply to Doug Marsico
  • Grace   February 19, 2014 at 8:04 pm

    As a follow-up question: What if the landlord *does* allow pets, and the admission of the service animal is not a “reasonable accomodation”? Is the landlord in violation of the Fair Housing act if s/he states that a pet deposit is required?

    Reply to Grace
  • Doug Marsico   February 20, 2014 at 3:31 pm

    I think anytime that a landlord requires a pet deposit for a service animal, the landlord runs risk of violating Fair Housing Laws. So, where the landlord normally allows pets but under a condition of a pet deposit, the landlord needs to make an exception on the deposit rule. I hope that answers your question.

    Reply to Doug Marsico
  • Steven   April 8, 2014 at 4:55 pm

    Actually Andrew/Doug, a Landlord cannot require proof of the disability nor outside of guide dogs there is certification required for a service animal (in most states).

    If taken up high enough (ie court) then the animal must be able to provide 2 actions on cue or command that are not natural and would help the individual.

    These can be very simple things, when training PTSD psych dogs the commands can be simply whining and acting like the animal needs to use the bathroom.

    How can this be an action you ask, b/c in social situations where a member with PTSD begins to become anxious he can give a non verbal cue to the animal and upon the animal acting this out the member will have a reasonable and non invasive/embarrassing reason to step away from the engagement.

    There are 3 things you are allowed to ask of a person with an animal, “is it a service animal”, “what tasks the animal has been trained to perform” and “can I pet it”

    Anything outside of that is breaking the law.

    http://www.ada.gov/svcanimb.htm

    http://www.ada.gov/qasrvc.htm

    Reply to Steven
  • Steven   April 8, 2014 at 5:07 pm

    Found it under the FHA as well. (Notice again the first line is you cannot inquire about disability, other than documentation that they have one, not what or how severe it is)

    I have a letter from my psychologist just stating that I am a patient and that my animal provides comfort. Notice that even there some would try to classify it outside of the service animal, but I identify it as such, I have documentation, and if ever challenged my animal is trained and the court battle would be brief.

    Although inquiries into the existence, nature and extent of disabilities are prohibited by the Fair Housing Act when application is made for housing, an individual with a disability who requests a reasonable accommodation may be asked to provide some reliable professional documentation (but medical records may not be required) confirming that he or she has a disability and the accommodation is necessary for the person to reside in the housing. To support a discrimination claim, the person with the disability might be required to further demonstrate that the requested reasonable accommodation is necessary for his or her equal use and enjoyment of their dwelling. In investigating complaints brought under the Act, HUD considers whether there is evidence that supports a finding of disability, whether the service animal performs a function directly related to the individual’s disability, and whether the requested accommodation is reasonable.

    Service Animal Categorized
    The Fair Housing Act does not define “service animal” per se, and does not make a distinction among certified service animals, non-certified animals, animals that provide psychological support, and service animals in training that live with the people with disabilities for whom they will work. The Act does not have restrictions about who may train the animal. However, the Act recognizes that service animals are necessary for the individuals with disabilities who have them, and as such does not categorize service animals as “pets.” Service animals, then, cannot be subjected to “pet rules” that may be applied by housing providers to companion (non service) animals. Housing providers cannot, for example, impose upon service animals the size or weight restrictions of a pet rule, exclusions from areas where people are generally welcome, or access restrictions to only a particular door or elevator. Further, special tags, equipment, “certification” or special identification of service animals cannot be required. Judith Keeler, Director, U.S. Dept. of HUD, Northwest Alaska Area Fair, Housing Enforcement Center, states that it is HUD’s position that no deposit may be charged for the service animal.

    Reply to Steven
  • Bryce Campbell   April 10, 2014 at 5:08 pm

    I understand the intent of the law to help handicapped person of which I totally agree with and have no problem. However, at a university town rental company many students are lying about their dogs/animals being “service animals” and are avoiding our extra “Pet Rent” by doing so. The law is unjust. It needs to be changed. It should be okay to ask for papers of proof the person is actually disabled in some way and the same for the animal being trained to help them. Someone who is blind is usually obvious. But someone who has an “emotional issue” is not. To park in handicapped spots they have a “hanger”. If they parked at a business why should they not have to prove they are handicapped if asked? It’s an unjust law. It needs ammended.

    Reply to Bryce Campbell
  • K B   April 15, 2015 at 2:00 am

    By law you cannot ask for the type of disability for reasons like my own. I am a disabled veteran with TBI “Traumatic Brain Injury” among other things. I am 80% disabled and require a service animal to keep me calm and level. Because of my disability I have trouble in social situations due to anger and depression extremes. If landlords knew of a disability like mine they could treat me unfairly because of it. You or others may not think so, but it happens quite a lot. For individuals like myself, we have a document that states we are disabled and our disability level. It does not indicate what the disability is. My service animal is registered with NSAR and has proper paperwork. I hope this opens some eyes and answers a few questions.

    Reply to K B
  • Rebecca Tschider   September 11, 2015 at 9:18 am

    I understand for a trained service animal, that the landlord can not charge a deposit. I have a tenant who obtained an emotional support animal post signing of the contract. I do allow pets to not an issue, but it is a 5 month old puppy. I do charge deposits for puppies, as it is not a trained service dog, this feels like grey area. Is the landlord allowed to charge deposit for a puppy support dog?

    Reply to Rebecca Tschider
  • Patrick Freeze   September 28, 2016 at 7:47 pm

    It is so important as a landlord to understand the Fair Housing laws, even as they apply to service animals. I think that distinguishing between extra fees and damage collection is great information for landlords. You can find yourself in a lot of hot water by doing the wrong thing. And, ignorance will not hold up in court, Enlisting a property management company that knows all of the renter laws as they apply to discrimination, landlords, and tenants, is one way to avoid having issues with service animals.

    Reply to Patrick Freeze

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