Landlords of all property types, pet-friendly or not, will encounter tenants with service or assistance dogs (and other animals). The law requires reasonable accommodation for animals that help with tenant handicaps. Landlords can sometimes request documentation for a handicap or a service animal.
The law treats service and assistance animals mostly the same, but they’re two different types. A service animal has professional training to do tasks that help a handicapped person. An assistance animal has been recommended as helpful to someone’s handicap, whether or not the animal has specific training. For example, a seeing-eye dog is a service animal, while an emotional support parakeet is an assistance animal. Service animals and assistance animals both have a right to reasonable accommodations under the Fair Housing Act.
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While they may provide emotional support, the law does not consider service or assistance animals to be pets . Such animals help their owners with handicaps. Pet policies in a lease don’t automatically apply to them. However, a tenant’s disability does not necessarily mean all their animals are service or assistance animals. If an animal doesn’t help with a tenant’s handicap, the law treats it as a normal pet regardless of the tenant’s disability. For example, a blind tenant might own a cat that isn’t a service or assistance animal, as well as a seeing-eye dog. The dog would get accommodation under the Fair Housing Act, but a landlord wouldn’t have to accommodate the cat.
A service or assistance animal doesn’t have to be a dog. If an animal helps with a handicap, it can qualify as a tenant’s service or assistance animal.
Landlords are limited when asking for documentation related to disabilities. Federal privacy laws protect tenants from intrusive questions during accommodation requests. Landlords have a right to know whether a tenant has a handicap, and whether the requested accommodation is reasonable. They can ask for only as much information as necessary to determine these two issues. Landlords do not have the right to know any specific condition or treatment experienced by a tenant. When the handicap or accommodation are obvious, tenants don’t have to give the landlord more information. For example, a blindfolded tenant with a red-tipped cane being led by a seeing-eye dog doesn’t have to prove visual impairment to the landlord or justify using a seeing-eye dog for assistance. On the other hand, for something like a tenant who has a support cat to help with recurring depression, a landlord can ask for an emotional support animal (ESA) letter from a health professional. The landlord can also ask for documentation related to exotic breeds or animals which need an unusual amount of special accommodation.
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Landlords can verify a disability that relates to the requested accommodation. They can also request documentation about the type of help that the animal provides. Documentation does not necessarily have to come from a health professional. Courts have clearly stated that a tenant’s personal testimony can be valid evidence of disability.
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For service animals, like seeing-eye dogs, a landlord can ask for documentation of the animal’s training. Assistance animals, by contrast, don’t have to be trained in order to qualify for reasonable accommodations.
The federal government publishes extensive guidelines on how to document and accommodate requests for a service or assistance animal. For more information on the Fair Housing Act and its requirements in this area, see the resources below.
Given the differences in the applicable regulations and the guidance from HUD and DOJ, the Court concludes that no special training is required for an animal to qualify as a service or assistance animal for FHA purposes. Rather, the relevant inquiry under the FHA is whether the animal performs the disability-related assistance or provides the disability-related benefit needed by the person with the disability. Whether the animal performs such services or provides such a benefit generally is a question of fact. Further, a housing provider may ask for documentation of the disability, or the need for an assistance animal, if the disability, the need, or both are not apparent.
[T]here is a difference between not requiring the owner of a movie theater to allow a customer to bring her emotional support dog, which is not a service animal, into the theater to watch a two-hour movie, an ADA-type issue, on one hand, and permitting the provider of housing to refuse to allow a renter to keep such an animal in her apartment in order to provide emotional support to her and to assist her to cope with her depression, an FHA-type issue, on the other. Based upon the foregoing alone, this Court would conclude that accommodations under the FHA regarding animals are not limited to service animals.
To make out a prima facie case for failure to provide a reasonable accommodation, the charging party (here, Giménez) had to show that he was a person with a disability, that the Association knew or should have known that he was a person with a disability, that his emotional support dog was reasonable and necessary to afford him an equal opportunity to use and enjoy his dwelling, and that the Association nonetheless refused to provide a reasonable accommodation.
[T]he ALJ discounted Giménez’s own testimony, apparently because he concluded that an individual cannot supply key testimony verifying his own disability status. Yet, our research suggests the opposite.
