This article was posted on Monday, Jul 01, 2013

The question comes up a lot – does a property have to grant a tenant’s request for a companion animal the same way that it has to consider a request for a service dog or an assistive animal?

The answer is pretty clear.  Regardless of what the animal is called, service animal, assistive animal, therapeutic animal, companion animal or anything else, the property must permit the resident to keep the animal if:

  • The person seeking the accommodation is a person with a disability
  • The person needs the animal because of his/her disability and
  • Allowing the tenant to keep the animal would not impose an undue financial and administrative burden on the property

The Fair Housing Act (FHA) does not mention the word “animal” in any context but the United States Department of Housing and Urban Development (HUD) has long taken the position that allowing a disabled person to keep an animal may be a reasonable accommodation within the meaning of the FHA.  What an animal is called is irrelevant.  Although early case law suggested that a particular animal must be individually trained to assist the person with the disability, both courts and HUD have long discredited that suggestion.  The controlling question today is only whether allowing the animal is something that is reasonable and necessary to afford a disable person an equal opportunity to enjoy a dwelling.

Between 2002 and 2010, the United States Department of Justice, (DOJ) filed ten (10) federal court lawsuits against landlords arguing that the failure to offer reasonable accommodations to tenants with emotional support animals (“therapeutic” or “companion” animals) violated the FHA.  Each of those ten cases was resolved with a consent decree, a settlement or a favorable jury verdict.  In each of those cases, DOJ sought an accommodation involving emotional support animals, notwithstanding the lack of specialized training.

Claims raised by private individuals and fair housing organizations are getting similar results.  In the Orange County, California Superior Court, two cases recently settled for $185,000 and $200,000 respectively.  Both of those cases alleged a failure by landlords to permit tenants to keep therapeutic or companion animals as a reasonable accommodation for a disability.

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Other states, while not quite as generous, saw similar results.  In Oregonlast year, landlords settled similar cases for $75,000 and $50,000 in additions to requirements in rental policies and fair housing training.  A federal court in Hawaiigranted summary judgment for a tenant whose landlord had refused to allow him to keep a companion animal as an accommodation for his mental disability.  A North Dakotacourt reached a similar conclusion in March 2011 where the court said:  Imposing a requirement that only animals with specialized training can be deemed “a reasonable accommodation” in the housing context has the effect of discriminating on the basis of disability.  Under such an interpretation, landlords would be required to make a reasonable accommodation for individuals with physical disabilities, such as those that are blind or hearing impaired, but would not necessarily have to accommodate those with a mental disability-related need for support, such as depression or anxiety.  A determination that animals need not have specialized training to fall within the purview of the FHA ensures the equal treatment of all persons with disabilities who need assistance animals in residential housing.  Such an interpretation is consistent with the plain language of the statute, HUD’s regulations and the DOJ’s position.”

Under these cases, as well as under HUD’s and DOJ’s interpretations, a landlord must utilize the same individualized assessment when a resident wants to keep an emotional support animal as it does when the resident wants to keep a seeing eye dog or other individually trained animals.

That analysis requires the landlord to first consider whether the resident has a disability as the FHA defines that term.  For these purposes, a disability is a physical or mental impairment that substantially limits or restricts one or more of a person’s major life activities.  As set out in the definition, both physical and mental impairments are covered by the Act and landlords must make accommodations for both of them.

Next, the property must consider whether the accommodation sought by the resident is “necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling.”  Equal opportunity refers to the same opportunity that is afforded to personas with different kinds of disabilities and to those without disabilities.

Finally, the property has to evaluate whether providing the requested accommodation would impose an undue financial and administrative burden on the property.  This financial and administrative burden is  not a speculative burden but a requirement that the property show an actual burden that will result from allowing the specific animal that the tenant wants to keep.

This individualized assessment is intended to separate those residents who only want pets from those who need an animal because of a disability.  ANorth Dakotacourt wrote:  “The Court believes that only those with proper disabilities are afforded accommodations such as assistance animals; it will not, as portended by the AOAO, result in everyone who wants a pet being afforded an assistance animal, so long as they label it an emotional support animal.  Rather, because the animal must alleviate the disability, only those with disabilities will be afforded this accommodation.

Obviously, a determination as to whether or not to permit a person keep any kind of assistance animal, therapeutic, service companion or otherwise – is a complex legal question.  Properties with any uncertainty about their decision are strongly encouraged to seek knowledgeable legal counsel before making any determinations.

Judy Drickey-Prohow is an attorney with the Law Offices of Scott M. Clark, P.C. and can be reached at (520) 241-1847.  Reprinted with permission.

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