Landlords may be asked to allow an assistance animal for an applicant or tenant with a disability as a reasonable accommodation under federal or state Fair Housing laws. A reasonable accommodation is a change in policies, practices, or services to allow a person with a disability to have equal opportunity to use and enjoy a dwelling unit or common space area.
An assistance animal is legally not a pet. A landlord is required to make an exception to any “no pets” policy and allow an assistance animal if the request for reasonable accommodation would not create an undue financial or administrative burden on the landlord or fundamentally alter the nature of the housing. A request for reasonable accommodation can be made at any stage of the rental process including application, tenancy, or to prevent an eviction. Denial of a valid accommodation request is a violation of discrimination laws.
The right to reasonable accommodation is protected by federal statutes:
- Fair Housing Act (FHA) – applies with certain limited exception to all forms of housing for sale or rent. Most residential housing is covered by the Fair Housing Act.
- Rehabilitation Act of 1973 (Section 504) – applies to programs that receive federal assistance such as public or subsidized housing.
- Americans with Disabilities Act (ADA) – Title II applies to all programs, services, and activities made available by public entities, such as state and local governments, regardless of federal financial assistance. Title III applies to private entities and non-profit service providers that are considered public accommodations such as restaurants, hotels, schools, theaters, shopping malls, supermarkets, recreational facilities, medical offices, law offices, insurance offices, and other commercial facilities. Title III of the ADA permits the use of a service animal by an individual with a disability.
Landlords need to be well acquainted with Fair Housing and the ADA to understand and comply with federal laws regarding accessibility and reasonable accommodation. In addition there may be state or local laws regarding accessibility and fair housing laws that impose more stringent requirements than federal laws. Some states may define assistance animals in broader terms or extend coverage to animal species other than dogs which may impose greater legal obligations regarding accommodation. It is important for landlords to have a reasonable accommodation policy including how to handle
assistance animal requests to make sure all requests are treated equally and in the same way.
An important distinction to keep in mind is that Fair Housing laws regulate private residential housing while ADA governs public accommodations. However, Title III of the ADA covers public and common use areas at housing developments when these public areas are, by their nature, open to the general public. For example, a rental office is covered since the rental office is open to the public. As another example, facilities such as a clubhouse or pool may be covered if they are open to non-residents.
The applicant or tenant must meet the statutory definition of having a disability. Federal law defines a person with a disability as “Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment.”
In general, a physical or mental impairment includes hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex, and mental retardation
that substantially limit one or more major life activities. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.
The disability discrimination provisions of the Fair Housing Act do not extend to persons who claim to be disabled solely on the basis of having been adjudicated a juvenile delinquent,
having a criminal record, or being a sex offender. Furthermore, the Fair Housing Act does not protect persons who currently use illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs, or persons with or without disabilities who present a direct threat to the persons or property of others.
The words used to describe assistive animals can create confusion regarding definition and compliance. Assistance animals may also be called emotional support animals, companion animals, comfort animals, well-being animals, or service animals. In fact it was common in the past to refer to all assistance animals as service animals whether covered by Fair Housing or ADA requirements.
A recent ADA amendment has now given a more narrow definition to the term service animal. The new rules now limit the definition of “service animal” to include only trained dogs. A “service animal” is defined as any dog that is individually trained to do work or perform tasks for the benefits of an individual with a disability including physical, sensory, psychiatric, intellectual, or other mental disability. However, new rules also, in certain situations subject to certain limitations, allow the use of trained miniature horses as alternatives to trained dogs.
While the new ADA rules exclude emotional support animals in defining service animals this exclusion does not apply to Fair Housing or Section 504 requirements. Fair Housing law takes a broader approach to assistance animals. Individuals with disabilities may request a reasonable accommodation for assistance animals in addition to dogs including emotional support animals under the FHA or Section 504. In situations where both laws apply housing providers must meet the broader FHA/Section 504 standard in deciding whether to grant reasonable accommodation requests.