9 minute read
The Truth About Cats, Dogs & Assistance Animals
Everything you need to know about the law and your responsibilities.
Aliyah Ross | NC REALTORS® Content Marketing Coordinator
BY ALIYAH ROSS CONTENT MARKETING COORDINATOR
Laws surrounding assistance animals, service animals and emotional support animals have been barking up much talk in the real estate industry recently.
Maybe you have a tenant seeking to rent a house with a pet deposit fee but claims to have a trained service dog. Or you’re assisting a prospective buyer in a condominium association with a no-pet policy who claims to have an emotional support rabbit. Are you familiar with the housing laws regarding such animals and how it affects how you do business? Knowing the details of these laws will help you protect the rights of your clients and steer clear of violating the federal Fair Housing Act (FHA) and getting reported to the United States Department of Housing and Urban Development (HUD.) And what about the Americans with Disabilities Act (ADA)? How does that apply? Don’t worry; we’ll break it down for you.
What are assistance animals?
FHA and HUD regulations prohibit discrimination because of disability and require housing providers to make a “reasonable accommodation” for persons with disabilities. Many people with disabilities rely on animals to assist them with their daily lives, and HUD uses the term “assistance animals” in interpreting the FHA’s reasonable accommodation requirement. Under the FHA, permitting a person with a documented disability to keep an assistance animal is viewed as a reasonable accommodation in a housing unit. While dogs are the most common type of assistance animal, other animals can also be assistance animals. Almost anything can be considered an emotional support animal, from a dog or cat to a hamster, snake, parrot and more.
The main factor separating these classes of animals from your family dog named Spot is that they are not considered pets. They work, provide assistance or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates symptoms or effects of a person’s disability. They do not have to be trained to accommodate an individual with a disability.
Tenants who need an assistance animal are not responsible for paying any form of pet fees and are permitted to have an assistance animal even under no-pet housing policies. However, the tenant is still responsible for paying for any damage their assistance animal may cause to a rental property or to the health and safety of others.
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How does the ADA factor in?
The ADA protects a person with a disability from discrimination in places of public accommodation. The office of a property management firm is a place of public accommodation, as are hotels, restaurants, professional offices, gas stations, etc. An individual rental unit is not. Therefore, the ADA standards will apply to your decision whether or not to allow the animal to be present in your rental office, but not when considering a request for reasonable accommodation for a rental unit.
The ADA also helps us in defining the term “service animal.” Unlike the expansive definition of an assistance animal in the FHA, a “service animal” under the ADA may only be a dog and, in limited circumstances, a miniature horse, that is individually trained to perform specific tasks for the benefit of a person with a disability. The most common example is seeing-eye dogs or those that help with physical disabilities, but it can go beyond that. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. Or, a person with depression may have a dog that is trained to remind her to take her medication.
Many brokers are more familiar with the ADA’s more restrictive requirements, and mistakenly believe that the FHA has the same standard. That is not the case. Let’s take a look at how the FHA applies.
What am I allowed to ask or consider from prospective tenants or clients about assistance animals?
When it comes to making an exemption to a no-pet policy for a rental unit, be it an apartment, condominium or house, the FHA will be the applicable law in almost every case.
There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation:
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 disabilityrelated 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?
A “no” answer to either of the questions means that a housing provider is not obligated to make a reasonable accommodation according to HUD. If the answer is “yes” to both, then HUD states the FHA requires an exception to a “no pets” rule or other modifications to current policies.
As a real estate professional, you must use your best judgment to make these determinations. If a tenant or prospect has a disability that is apparent (for example, being blind), you are not allowed to inquire about the disability. However, if the disability is not readily apparent or known to you, it is permissible for you to ask him or her to submit reliable documentation of the disability and the need for an assistance animal. If the disability is readily apparent or known, but the need for the animal is not, you may ask him or her to provide documentation of the disability-related need for an assistance animal.
What documentation can I or should I require tenants to submit for an assistance animal request?
Because the FHA does not require assistance animals to be individually trained or certified, and there is no state or federal law regarding the registration of service animals, you cannot require prospective tenants to show registration papers.
However, there are a few things you can ask or require these individuals to provide. HUD states the following in its FHEO Notice: “Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.”
Most sources indicate that the request should be in writing and explain how the reasonable accommodation helps or mitigates symptoms of the disability. While the tenant or prospect does not need to disclose the disability, he or she will need to provide documentation from a doctor or other health professional. According to HUD, a physician, psychiatrist, social worker or another mental health professional can provide documentation that the animal provides support that alleviates one or more of the identified symptoms or effects of an existing disability.
Emotional Support Animals & House Bill 796
The topic of emotional support animals is also circulating in the halls of the North Carolina General Assembly. In April, House members, including NC REALTOR® Brian Turner, introduced House Bill 796 “Emotional Support Animals—Rental Units.” The legislation sets out requirements for landlords regarding emotional support animals and also develops a structure for persons with a disability to register their animal as “emotional support.”
The bill defines an emotional support animal as a companion animal that “a health service provider has determined provides a benefit for a person with a disability.” The legislation also clearly defines a “health service provider” to ensure that there are not untrained persons making this determination solely for a fee. It limits these providers to only a physician, nurse practitioner, physician assistant, psychiatrist, psychologist or clinical social worker, all of whom must be licensed to practice in North Carolina.
The legislation received significant support in the House of Representatives, passing that chamber by a vote of 115-1. It is currently awaiting consideration in the Senate.
Want to keep up with this legislation and everything else going on in NC REALTORS® Government Affairs? Read the REALTOR® Advocate email newsletter, which reaches your inbox on Fridays.
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Am I allowed to ask details about the tenant’s disability?
Absolutely not! While a housing provider may ask for documentation of the disability-related need for the assistance animal, he or she may not ask for personal medical details. HUD states that a housing provider “may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.”
What happens if the tenant provides all documentation?
If the tenant provides sufficient documentation about the disability and the need for the assistance animal, the housing provider must offer an exception to a “no pets” policy. This permits the tenant to live with and use the assistance animal in all areas of the premises where people are typically allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.
Remember, a person with a disability may not be required to pay a pet fee or deposit for an assistance animal. Still, he or she may be required to pay the costs of repairs for damage the animal causes to the premises.
Am I ever allowed to deny the request?
Denying a request for accommodation to allow an assistance animal may be done only in limited circumstances. A request may be denied if the resident does not have a disability, as defined by the FHA, or if granting the request to keep an assistance animal is not a “reasonable accommodation” to allow a person with a disability access to the housing unit.
For example, it would not be a reasonable accommodation to allow a tenant to keep a breed of dog that the housing provider’s insurance carrier considers dangerous. In this instance, the housing provider would have to provide evidence that the breed of dog would impact the availability or cost of liability insurance under their current policy or a comparable policy from another carrier in the marketplace.
It is up to the tenant or person who requests the accommodation to show that the accommodation is necessary for him or her to have an equal opportunity to use and enjoy the dwelling. Once he or she makes that showing, the burden of proof shifts to the housing provider to show that the accommodation is unreasonable.
The underlying goal of the FHA is to provide access to housing. The unjustified denial of a requested accommodation is a form of housing discrimination.
What’s the most important takeaway here?
The FHA and the ADA are both laws protecting the rights of persons with disabilities. The FHA applies to housing units, and the ADA applies to anywhere the public can go.
When it comes to making an exemption to a no-pet policy for a rental unit, be it an apartment, condominium or house, the FHA will be the applicable law in almost every case. The FHA allows you to ask: 1) Does the person have a disability? and 2) Does the animal provide assistance or support related to the disability? If the person is able to answer both of those questions, you are required to make an exception and allow an animal, even if you have an established no-pets policy.
Amy Hedgecock | Owner of Fowler & Fowler in High Point, N.C.
When in doubt—call the Legal Hotline
Not sure how to handle a housing situation involving a service or assistance animal? Call the NC REALTORS® Legal Hotline for assistance. All NC REALTORS® members have free, unlimited access to the hotline and a team of lawyers ready to assist you with any legal issues you face on the job. Call 336-294-1415, Monday-Friday, to find resolution and alleviate any worry about your legal risks on the job.
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