There are so many “myths and misinformation” regarding companion animals floating around out there, it is no wonder why so many apartment owners and managers get into deep trouble when trying to address this topic with a current or prospective resident.
Companion animal rules apply to the resident as well as anyone associated with the tenant.
There are endless examples of cases regarding landlords who have been accused of discrimination because of their pet policies. One landlord recently was charged with “discrimination” after telling a tenant that their family member with a companion animal could no longer bring this animal onto the property!
Another landlord was accused of discrimination because he charged his tenant an extra “pet deposit” and “cleaning fee” up front for assumed damage that may be caused by the animal.
These cases highlight confusion over the companion animal rules. Part of that confusion stems from the fact that these situations are resolved on a case-by-case basis, making it more difficult for landlords to adopt a uniform policy.
So, unless you are an “owner-occupied” facility with four or less units, you must treat this request with the utmost importance and teach your staff how to properly address this issue. When a local housing authority is investigating a charge of discrimination, they often rely on regulations interpreting the FHA, so it’s important for all landlords to know these rules.
HUD is the agency of the government that oversees the FHA. The Department of Justice is also involved in prosecuting FHA cases. Companion animals are considered a “reasonable accommodation” for a person with a disability.
When a tenant or rental prospect complains about discrimination, the landlord may not know about it right away. It is common for the housing agency or for HUD to send in fake applicants called “testers” to try to catch the landlord in the act of discrimination. These testers will adapt a profile — like a disabled person with a companion cat, and record the communications between the landlord and tenant.
It is critical for a landlord to know how to deal with companion animal requests and to treat all requests in the same way.
So, what is a companion animal and how does it differ from a service animal?
A companion animal is an animal that is prescribed for a tenant with a disability to treat the disability, including helping the person cope with their disability. While technically that’s not the same thing as a service animal, under the Fair Housing rules, the distinction does not matter!
Both must be allowed into the rental property if prescribed for a tenant with a disability to assist with their specific disability.
While this distinction isn’t important to HUD, it is very important to a landlord.
A service animal must undergo intense training prior to being assigned to a disabled owner!
A companion animal usually does not receive any training whatsoever. Just the mere presence of this animal is its job in helping the disabled individual cope with their disability. Currently, there are no restrictions on how the tenant chooses the individual animal, or what type of animal the tenant can choose. This has opened the door to many safety issues as well as nuisance issues from neighboring residents.
So, who “prescribes” a companion animal for the tenant?
The fair housing rules provide great leeway regarding who can prescribe a companion pet. The person does not have to be a doctor. They simply need to be “qualified to treat the disability”, and the animal must be useful in the treatment of the disability, typically by providing emotional support. There are no specific licensing requirements or skills that the person must possess.
Since the companion animal is not technically considered a pet, the landlord cannot charge any addition funds — a deposit, higher rent, pet rent, or change the conditions of the lease for the tenant with a disability who requests a companion animal. Be careful with this one!!
How does an existing “No Pet Policy” apply with companion animals?
The landlord must modify any existing pet policies, whether a “no-pets” policy or restrictions on the type, size or other factors regarding the pet. The companion animal is legally not a pet.
However, local or state rules which govern animals in residences likely still apply. This means that if your city has a ban on pit bulls, the companion animal cannot be a pit bull. (One local HUD division representative indicated that they have received complaints from tenants who wish to have pit bulls as companion animals.)
If the city or state regulates the number of animals, or if the animal’s droppings violate the law, HUD’s position so far has been that the landlord does not have the right to waive those local laws — only their own policies.
When Can a landlord deny the request for a companion animal?
The landlord can deny the request if the person making the request is not legally disabled, if the animal is not prescribed for treatment of that specific disability, or if keeping the animal creates an undue burden, like harming others, forcing the landlord to break the law, or causing a significant financial burden the landlord.
Landlords must be very careful not to apply their own standard on determining whether a companion animal is justified.
Recently, a landlord was sued for denying a request for a companion dog consistent with a no-pets policy. The tenant suffered from depression, PTSD, arthritis, and fibromyalgia. The landlord told the tenant that a dog would only be justified if she were blind; however, he would allow her to have a fish or a bird. Oh, you know that got ugly!
Is documentation of a disability required prior to approving the companion animal request?
If the disability is obvious, and therefore the need for the animal is obvious, a landlord should not ask for specific documentation or otherwise burden the tenant. However, if the disability is not obvious or not known, the landlord can ask for simple verification of the disability and the need for the animal as treatment if that link is not obvious. For instance, if a tenant who is in a wheelchair asks for a companion animal, the link between the disability and the animal may not be obvious. In that situation, the landlord could ask for some verification.
Typically, a letter from the person treating the disability stating the animal is necessary is considered sufficient documentation for the landlord to approve the request.
What if the animal causes damage to the unit or common area?
HUD’s position is that any other remedies that are available under the lease agreement generally will be enforceable. That means that the landlord should be able to deduct damage from the general security deposit or pursue a tenant for the damage in court, regardless of that person’s disability.
The tenant is generally expected to clean up after the animal and provide for its day-to-day care, subject to any local laws regarding the care and maintenance of an animal.
There is just too much that can go wrong when dealing with “reasonable requests” for companion animals in the multi-family housing arena. And this is just one slice of the “accessibility pie” that we must all deal with on a day to day basis.
If you have any questions or want to discuss any of this in more detail, please contact me directly.