HUD Issues It's Guidance Memo Regarding How To Evaluate A Tenant/Applicant's Request for An Assistance Animal But Fails to Provide Much Clarity

On January 28, 2020 HUD published its Memorandum/Notice on how best to assess a tenant/applicant’s request to keep an assistance animal as a reasonable accommodation under the Fair Housing Act.

You can find the entire memorandum here.

HUD had been promising for months to publish a notice/memorandum that would provide landlords with some clarity when it came to health care provider letters purchased online to support a tenant’s request to keep an assistance animal.  I know that I was looking forward to HUD’s memo and some much-needed clarity.

Needless to say, I was disappointed, as were other attorneys and commentators that have blogged about HUD’s latest guidance.  The memorandum really does not provide any clarity whatsoever.  While HUD does acknowledge that letters purchased on the internet are not reliable evidence of a disability or a disability-related need for an ESA -- “In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need to an assistance animal” --- housing providers have known that for years.

In fact, HUD states that it is providing this memo as guidance to help landlords distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animals and a person without a disability, who simply wants to have a pet or avoid the costs and limitations imposed by landlords’ pet policies, such as pet fees or deposits.  But after I finished reading the 19 pages, I did not come across anything new or helpful that helps me or my clients make that distinction.   

Much of the information in the memorandum has been published before and therefore is not new.  Much of the memo quotes from the Joint Statement from DOJ and HUD on Reasonable Accommodations which was published back in 2004.

I encourage everyone to read the entire memo.  Rather than regurgitate everything in the memo I have chosen to select certain passages or language that I found interesting, informative and/or controversial.

1.  FHA complaints concerning the denial of reasonable accommodations and disability access comprise 60% of all FHA complaints.
2. Landlords should not reassess request for reasonable accommodations that were granted prior to the issuance of this HUD guidance memo.
3. HUD’s memo does not expand or alter a landlord’s obligations under the Fair Housing Act (FHA) or HUD’s implementing regulations.
4. Landlords may not deny a RA request on the grounds that the tenant/applicant has not yet provided the information until they have been provided a “reasonable opportunity to do so.”
5. Besides information from a health care provider, the following can be used as confirmation of a disability:(1) A determination of disability from a federal, state or local government agency;(2) Receipt of disability benefits or services; (3) Eligibility for housing assistance or a housing voucher received because of disability.
6. Some types of impairments will, in virtually all cases, be found to result in a determination of a disability such as deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia.
7. If the tenant is requesting a unique animal that is not commonly kept in households, such as reptiles (not turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals, the tenant has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.
8. As a best practice, the landlord should make a determination as to whether or not to grant the tenant/applicant’s RA request generally within 10 days of receiving the documentation.
9. A landlord may not charge a fee for processing a RA request.
10. Before denying a RA request, the landlord is encouraged to engage in a good-faith dialogue with the tenant/applicant which is referred to as the “interactive process.”
11. Landlords may not require a health care professional to use a specific form, to provide notarized statements, to make statements under penalty of perjury, or to provide an individual diagnosis or other detailed information about a person’s physical or mental impairment.
12. When it comes to unique animals (i.e. those not commonly kept in households) it may be helpful for the patient/tenant to ask their health care professions to provide information related to (1) the date of the last consultation with the patient/tenant, (2) any unique circumstances justifying the patient/tenant’s need for the particular animal or type of animal, (3) whether or not the health care professional has reliable information about this specific animal or whether they specifically recommend this type of animal.

There you have it.  Everything is much clearer now isn’t it?!?

What Is The Difference Between A Service Animal, An Emotional Support Animal, A Comfort Animal, A Companion Animal, and a Therapy Animal?

There is much confusion regarding the difference between the various terms used for assistance animals. Landlords, tenants, tenant's health care providers, lawyers and even the courts are often confused when it comes to this issue. Hopefully this blog post will help.

I often use the generic term "assistance animal" to refer to any animal that is prescribed for a tenant to assist him or her in some way. The general term "assistance animal" includes all of the terms mentioned below.

Service Animals

The American's with Disabilities Act (ADA) defines a service animal as an dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.

• A service animal can only be a dog or a miniature horse (if certain conditions are met).

• The task performed by the animal must be directly related to the person's disability.

• Tasks performed by a service animal may include pulling a wheelchair, guiding a person who is blind, alerting a person to an oncoming seizure, pressing an elevator button, or reminding a person to take his or her medicine.

• Because a service animal is trained, it typically will not cause any problems in rental housing. Service dogs are better behaved than most human beings that I have met. A Landlord rarely needs to be concerned about a service animal causing problems.

• A service animal is allowed to accompany its handler everywhere including public places, private property, rental housing, an airplanes, with a few very limited exceptions.

• There is no government entity that certifies or registers service animals. Those service animal cards, badges, and vests that you have seen can be purchased by anyone and used for animals that are not service dogs.

• Service animals are not pets. They are an assistive device.

Emotional Support Animals, Comfort Animals, and Companion Animals

The terms emotional support animal (ESA), companion animal and comfort animal are interchangeable and refer to an animal that assists a person with a mental or emotional health issue.

• An ESA provides companionship, relieves loneliness, and mitigates the emotions or psychological symptoms associated with the handler's mental health issue.

• An ESA is not specifically trained to work or perform a task.

• Because an ESA is not specially trained like a service animal, an ESA may be poorly behaved and may cause problems in rental housing including, but not limited to, excessive barking, damaging property, running away, and attacking other animals, residents, vendors or management staff.

• An ESA is not restricted by type of animal or breed of animal and may include any and all animals.

• An ESA is not allowed in public places like stores or restaurants as it is not a service animal. An ESA is allowed in rental housing as a reasonable accommodation under the Fair Housing Act. An ESA is also allowed on airplanes.

• An ESA is not a pet.

Therapy Animals

A therapy animal is a pet that is trained to interact with people other than its handler in order to make those people feel better. Therapy animals are typically found in a group setting like a hospital, retirement home, nursing homes, etc.

• A therapy animal can be any type of animal.

• A therapy animal is not specifically trained but typically is well-mannered and will behave safely around all types of people.

• To become a therapy animal, the animal typically must pass a test and may be certified

• A therapy animal does not have any special access rights to public places, private property, rental housing or airplanes, unlike service animals and ESA's
• A therapy animal is a pet.

So in the majority of situations where a landlord is asked by a tenant to keep an animal to assist him or her, the tenant is referring to an ESA/comfort animal/companion animal, even though the tenant may improperly refer to the animal as a service animal. Also remember that the only type of animal that can be a service animal is a dog or a miniature horse (if certain conditions are met).

They key for landlords is to focus on what they animal does for the tenant rather than what the animal is called. Does the animal assist a tenant with a disability? Is the animal prescribed for the tenant as a result of their disability?

It really does not matter to a landlord whether the animal is a service animal or an ESA since both are allowed in rental housing.

Since so many people use the various terms incorrectly, a landlord does not want to put himself is a difficult (and possibly expensive) situation by responding improperly to a tenant's request to keep an animal just because the tenant used the incorrect term. Focus on what the animal does for the tenant and not what the animal is called.

Landlords Should Create and Implement A Reasonable Accommodation Request Process

With more and more tenants making reasonable accommodation requests to keep assistance animals in their apartments, it is important for landlords to create a policy and process to handle such requests when they arise.

As background, a reasonable accommodation request is a request from a person with a disability to a landlord asking that the landlord modify his/her policies, practices or procedures to accommodate the disabled person so that s/he can enjoy their housing to the same extent as a non-disabled person.

To learn the basics of reasonable accommodation requests, please refer to my prior blog post entitled “A Landlord's Primer on Reasonable Accommodations."

To learn more about reasonable accommodation requests involving assistance animals, please refer to my prior blog post entitled “So Let's Talk About . . . Companion/Comfort Animals."

The most common reasonable accommodation request these days is to be able to keep an assistance animal. The term assistance animal is a general term and includes, but is not limited to, service animals, emotional support animals, companion animals, comfort animals, and therapy animals. Regardless of what the tenant calls the animal, if it is prescribed by a health care provider it may be the basis for a reasonable accommodation request.

Oftentimes a tenant will show up at the rental office with a letter from their health care provider that says that they need an animal to assist with their disability. While the letter may be sufficient to verify the reasonable accommodation request, it is recommended that landlords create and implement a process to deal with reasonable accommodation requests to ensure that the landlord is treating everyone the same.

At a minimum, a landlord's Reasonable Accommodation Request process should include the use of the following documents:

1. Reasonable Accommodation Request form

2. Reasonable Accommodation Verification form

3. Assistance Animal Agreement

Please remember that if the tenant's disability is open and obvious and the need for the accommodation is also apparent, then a landlord does not need to follow the reasonable accommodation process, nor should they.

Reasonable Accomodation Request form

When a tenant makes a reasonable accommodation request, the landlord should provide the tenant with a Reasonable Accommodation Request form to complete. Essentially this form asks the tenant to confirm the following: (1) that they are disabled, (2) that the accommodation being requested is necessary for the tenant to enjoy their housing, and (3) that there is an identifiable relationship, or nexus, between their disability and their accommodation request. The form should allow space for the tenant to specify their accommodation request.

Once the request form is returned to the landlord, the landlord should review it to confirm that it is accurate and complete.

If the tenant does not answer “yes" to all three questions mentioned above, then the landlord may not have to grant the reasonable accommodation request. If this occurs, further investigation and guidance will be necessary.

Please be aware that a reasonable accommodation request can be made orally or in writing and a landlord must still consider, evaluate and respond to the request even if the tenant does not use the landlord's Reasonable Accommodation Request form.

Reasonable Accommodation Verification form

Next, the landlord should meet with the tenant and explain that the next step is to verify their request with their health care provider. The landlord should ask the tenant for the contact information for his or her health care provider and the landlord should then mail, fax or email a Reasonable Accommodation Verification form to the health care provider.

A Reasonable Accommodation Verification form should allow space for the landlord to both identify the tenant by name and for the landlord to specify the tenant's requested reasonable accommodation. A verification form should also ask the health care provider if the above-mentioned three questions are applicable to their patient.

It is necessary for a landlord to obtain the applicant or tenant's permission to contact and verify the information with their health care provider,therefore, the verification form should also include language giving the landlord permission to do so.

The form should also provide space for the health care provider to provide his or her contact information, signature, and the date.

Once the health care provider returns the verification form, the landlord should review it for completeness. The health care provider should have answered the above-mentioned three questions with a “yes." If not, the landlord may not have to grant the reasonable accommodation request and further clarification and guidance will be necessary.

It is important to remember that the verification of a disability and the need for a reasonable accommodation may come from a doctor, but it does not have to come from a doctor. Verification can also be made by other medical professionals such as a therapist, physician's assistant, or nurse. Verification may also come from a counselor, social worker, peer support group, a non-medical service agency or a reliable third-party who is in a position to know about the tenant's disability.

Confirm That The Specific Assistance Animal Does Not Pose A Danger

Prior to granting the tenant's reasonable accommodation request, a landlord should ask the tenant if the assistance animal has ever: (1) bitten or injured another person, (2) damaged the property or possessions of another, and/or (3) has a propensity or predisposition to bite or injure.

If the tenant answers “yes" to any of these questions, the landlord should inquire further. If the tenant's assistance animal has caused harm or damage in the past, a landlord may be entitled to reject the reasonable accommodation request for that specific animal, unless the danger can be eliminated by another reasonable accommodation. Further clarification and guidance may be necessary.

It is important to remember that a landlord may not reject a tenant's reasonable accommodation request for an assistance animal because the landlord believes that the breed of the assistance animal is dangerous. The danger has to be specific to the animal.

Assistance Animal Agreement

Assuming the Reasonable Accommodation Request and Verification forms have been returned and adequately meet and verify the need for the accommodation, the next step is to meet with the tenant and have them complete an Assistance Animal Agreement.

A landlord should not use a Pet Agreement for an assistance animal. An assistance animal is not a pet; rather it is an “assistive device" similar to a wheelchair or prescription medicine. Additionally, unlike with a pet, a landlord cannot charge a fee or deposit for an assistance animal.

Nonetheless, a landlord may still require the owner of an assistance animal to follow certain rules with regard to their assistance animal. The purpose of the Assistance Animal Agreement is to set forth those rules. Examples of acceptable rules include, but are not limited to: (1) the tenant will clean up after the animal, (2) the tenant will comply with all municipal and county ordinances and state laws regarding the animal, (3) the animal will not be allowed to cause undue noise and/or disrupt the quiet use and enjoyment of the premises, (4) the tenant will be responsible for the animal's behavior at all times, (5) the tenant agrees not to leave the animal unattended in common areas or on the grounds at any time.

An Assistance Animal Agreement should also require that the tenant provide the name and contact information of a person who will be responsible for the assistance animal should the tenant become sick, incapacitated, or die. As always, the tenant should sign and date the Agreement.

While the issue of reasonable accommodation requests and assistance animals may seem overwhelming to landlords, I do not foresee this issue going away. If anything, I believe that landlords will be receiving more requests for assistance animals and the requests will be for more exotic assistance animals (can you say ferret, sugar glider, guinea pigs, iguana, tarantula, pot-bellied pig etc.) and for multiple assistance animals (yes it is true, I have already had client's that have received requests from tenants for 3 and 4 assistance animals). I have even had a client receive a reasonable accommodation request for an assistance "person." To help streamline the process, reduce stress, and most importantly to make sure all tenants are being treated the same, landlords should create and implement a Reasonable Accommodation Request process.

For those of you that do not want to reinvent the wheel, I have drafted Reasonable Accommodation Request forms, Verification forms, and Assistance Animal Agreements which are available at Wisconsin Legal Blank Company, Inc.

Can A Landlord Deny A Reasonable Accommodation Request For A Pit Bull Companion Animal?

As I have mentioned in a prior blog post I have seen a significant increase in tenant requests for a reasonable accommodation to a landlord's "no pet" policy so that the tenant can keep a comfort/companion animal. As a result of this increase, I am also seeing an increase in reasonable accommodation requests to keep what are often referred to as "dangerous breeds" of dogs -- such as Pit Bill Terriers, American Staffordshire Terriers, German Shepherds, Doberman Pinschers, Rottweilers etc. -- as a companion/comfort animals.

If you have not already read my prior post on comfort animals and reasonable accommodation requests generally you should do so now as this post will assume that you already have a basic knowledge of those issues.

Generally speaking it is a violation of federal and state fair housing laws to deny a request for a dangerous breed companion animal unless a landlord can prove that the specific animal will cause a direct threat. Conversely, a landlord cannot deny a reasonable accommodation request for a "dangerous breed" dog just because the landlord believes that all dogs of that breed are inherently dangerous. Fair housing law does not allow a landlord to engage in stereotyping of dog breeds. So just because a landlord may have had a prior bad experience with a Pit Bull or Rottweiler does not mean that the landlord can ban all Pit Bulls or Rottweilers from being used as companion/comfort animals by his/her tenants. I recently read an online article of a landlord that is being sued by the government for Fair Housing violations due to the landlord's stereotyping of all Pit Bulls as dangerous.

However if the landlord can show that the specific Pit Bull poses a direct threat to the safety of others then the tenant's accommodation request may be legally denied. Such a direct threat could be demonstrated if the specific Pit Bull had previously attacked a person or another animal. But it is important to remember that there must be a direct threat not just a speculative risk. So even if the specific Pit Bull at issue was once dangerous, if the tenant takes the animal to obedience training, administers medication, and/or purchases equipment (such as a muzzle) which causes the animal to no longer be a direct threat, then it may no longer be reasonable to exclude the animal and deny the tenant's accommodation request.

Additionally, if the landlord can show that the specific Pit Bull would cause substantial physical damage to the property of others (and that probability cannot be reduced by another accommodation) the tenant's accommodation request may be legally denied. But again, there must be a direct threat of the Pit Bull causing substantial physical damage. A speculative risk or belief that all Pit Bulls cause substantial damage to property is not sufficient.

The long and short of it is the analysis that must be conducted to determine if a disabled individual's Pit Bull poses a direct threat to safety or will cause substantial damage to property of others is very fact intensive and must be done with great care.

There is one more basis for which it is acceptable to deny a tenant's companion Pit Bull. And that is, if a landlord's insurance carrier would cancel the landlord's insurance policy, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the landlord. As such, the landlord may deny the tenant's accommodation request as unreasonable. HUD has even issued a memo (back in June of 2006) stating this but also advises their investigators that they must verify such a claim with the insurance carrier directly and also consider whether there is comparable insurance available in the marketplace, without the restriction, for the landlord to purchase.

HUD Issues Notice on Assistance Animals and Reasonable Accommodations For Persons with Disabilities

Today the U.S. Department of Housing and Urban Development (HUD) issued a notice on assistance animals and reasonable accomodations for persons with disabilities.

Not to long ago I wrote a post that dealt with this subject. HUD's new notice also adds clarifying information to that post.

Disability-related complaints, including those that involve assistance animals, are the most common discrimination complaint that HUD receives per John Trasvina, HUD Assistant Secretary for Fair Housing and and Equal Opportunity, so HUD felt a need to publish this Notice to provide further guidance on the topic.

The notice will provides landlords and management companies with an explanation how to properly treat a request by a tenant or their guest for a reasonable accommodation to the landlord's "no pet" policy. Below are some highlights from the Notice but I strongly encourage everyone to read the entire Notice.

Highlights:

1. While the definition of a "service animal" under the ADA has been limited to include only dogs that have been specifically trained (and it specifically excludes emotional support animal) this limited ADA definition DOES NOT limit a landlord's obligations to make reasonable accommodations for assistance animals under the Fair Housing Act and Section 504 of the Rehabilitation Act ot 1973, (or Wisconsin's Open Housing Law for that matter)/

2. A reasonable accommodation analysis must be considered when persons with disabilities use (or seek to use) assistance animals in housing where the landlord forbids residents from having pets or otherwise imposes restrictions or conditions relating to the pet.

3. Assistance animals provide many disability-related functions including, but not limited to:

a. guiding individuals who are blind or sight-impaired

b. alerting individuals who are deaf or hard of hearing

c. providing protection or rescue assistantance

d. pulling a wheelchair

e. fetching items

f. alerting persons to impending seizures

g. providing emotional support to persons with disabilities who have a disability-related need for such support.

4. For purposes of a reasonable accommodations request, there is no requirement that the animal be individually trained or certified.

5. Landlords are to evaluate a requests for a reasonable accommodation to posses an assistance animal in a rental unit using the general principles applicable to all reasonable accommodations requests.

6. After receiving such a request a landlord must consider the following:

a. Does the person have a disability?

b. Does the person have a disability-related need for an assistance animal?

If the answer to both questions is "yes" then the federal laws (and Wisconsin's Open Housing laws) requires a landlord to modify or provide an exception to its "no pets" rule or policy so that the tenant can have an assistance animal.

7. The request for an assistance animal can be denied, even if the answers to the above questions were "yes", if:

a. the specific assistance animal poses a direct threat to the health and safety of others that cannot be reduced or eliminated by another reasonable accommodation.

b. the specific assistance animal would cause substantial physical damage to the porperty of others that cannot be reduced or eliminated by another reasonable accommodation.

8. Breed, size, and weight limitations may not be applied to an assistance animal.

9. Landlords may not require applicants and residents to pay a deposit for an assistance animal.

10. Landlords may require a tenant to cover the cost of repairs for damage caused by an assistance animal to the rental unit or common areas after it has occurred.

11. Landlords may ask individuals with disabilities who's disability is not readily apparent or known to the landlord, to submit reliable documentation of a disability and their disability-related need for an assistance animal. The documentation is considered sufficient if it establishes the person has a disability and that the animal will provide some type of disability-related assistance or emotional support.

12. A determination as to whether a person has a disability-related need for an assistance animal involves an individualized assessment. There are no birhgt line rules here. The analysis is very fact specific.

13. A delayed response to a request for a reasonable accommodation could be considered a violation if the delay is solely to frustrate the process.

So Let's Talk About . . . Companion/Comfort Animals In Rental Properties

I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come. So let's talk about companion/comfort animals in rental properties.

Background:

I will use the terms comfort animals and companion animals interchangeably throughout this post.

So we are all on the “same page" a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support. Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.

Wisconsin does not have a specific statute related to comfort animals. Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats. entitled “Animals Assisting People with Disabilities" applies to companion animals. It does not. That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments. Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.

So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision? Comfort animals are dealt with under a much more broad section of fair housing law dealing with "reasonable accommodations" which can be found at sec. 106.50(2r)(4), Wis. Stats.

A "reasonable accommodation" is a request made by a tenant for a change in a landlord's rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.

For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord's "no pet" policy.

The Law:

It is considered to be discriminatory to refuse to allow a tenant's request to keep a comfort animal if they meet the following requirements:

1. The tenant meets the definition of having a disability under Wisconsin or federal law ("an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment").

2. The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.

3. There must be an identifiable relationship (or nexus) between the tenant's disability and the request.

So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.

A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two. If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.

The tenant's specific disability need not even be disclosed - just the fact that the tenant has a disability is sufficient.

A tenant's request for a reasonable accommodation may be oral or in writing and the actual term "reasonable accommodation" need not be used. The request can even be made by someone on the tenant's behalf.

Practical Effects:

In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.

It is not even required that the tenant's doctor confirm that the tenant has a disability. HUD and DOJ's Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant's disability" may provide the verification of the tenant's disability.

As mentioned previously, a tenant's comfort animal need not be specially trained or certified. A comfort/companion animal can be any type of animal that the tenant wants. It could be the dog or cat (or mouse, rat, lizard, fish, . . . ) that the tenant owned prior to becoming disabled. It could be the stray dog that the tenant found walking down the alley last week. It could be a cat that the tenant's mother no longer wants in her house. It could be the rat that the tenant bought at the local pet shop.

I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant's companion animals . . . a miniature horses (because it would live longer than a dog and the tenant's mental health disability would be exacerbated by the death of another dog that wouldn't not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because). There is no limit on the type/breed, size, or age of a companion animal.

So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.

A landlord can deny a tenant's request for a companion animal if it:

1. Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.

2. Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.

3. Poses an undue financial burden and administrative burden.

4. Fundamentally alters the nature of the housing provider's operations.

For example, a landlord could exclude a tenant's comfort animal if that animal's behavior poses a direct threat because it attacked another tenant.

In order to make a decision to deny a tenant's reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis. You cannot just refuse the tenant's pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous. There must be a direct threat not just a speculative risk. Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.

I have worked with many landlords and management companies in analyzing whether a tenant's request for a reasonable accommodation to keep a companion animal should be granted. Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.

I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches, or pain medication. By thinking this way, many landlords will be better able to keep themselves out of trouble. Let me explain provide an example.

One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets. It was a very innocent question and one that I sure many landlords might have themselves.

The answer is a resounding “NO." Why is that?

Remember, a companion animal is not a pet. Again, think of the companion animal as an assistive device such as a wheelchair. Would it be acceptable to require all tenants that use wheelchairs to live in one building together? Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor? Of course not. Well the same goes with the tenant with the companion animal.

Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.

Having said that, a tenant that has a companion animal is still responsible for the animal's behavior and any damage that it may cause. For example, the tenant must still pick up after the companion animal. The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others. The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.

If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed. Since comfort animals are not specially trained or certified poor behavior is often an issue. I have had to evict several tenants with companion animals as a result of their poor behavior. In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building. Another case the animal (a dog again) bit another tenant. Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.

Conclusion:

The popularity of comfort/companion animals is not waning. I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful. Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed. And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise" their pet as a comfort animal.

If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet" or “limited pet" policy, I am certain that you soon will. As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.

If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the AASEW's upcoming LANDLORD BOOT CAMP on February 23rd, 2013.

04-30-13 UPDATE: HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities. See my post on this.