Prospective Tenant in Wheelchair with Dog
Question: I am a landlord with a “no pets” policy. Recently, someone in a wheelchair came to look at an open apartment. He called me later and told me he was really interested in the apartment, and he mentioned he has a dog. He didn’t say whether the dog was a service animal or whether the dog helps in any way with his disability.
I know I have to make certain exceptions to my property’s “no pets” rule for disabled individuals when they have service dogs. I think he would be a good tenant, but do I have to allow him to move in with his dog just based on the fact that he is obviously disabled, without him having told me that his dog helps him in relation to his disability?
Answer: A tenant with a disability may be entitled to a reasonable accommodation so that he can have an equal opportunity to use and enjoy the dwelling. A common reasonable accommodation is one that permits a disabled tenant to have an animal with him at a “no pets” property, if the animal provides the disabled tenant with disability-related assistance. The idea behind such an accommodation is that the tenant needs to have the animal in order for that disabled tenant to be able to use and enjoy his housing to the same extent as a nondisabled tenant.
Before a tenant is entitled to a reasonable accommodation, however, he must make such a request to the landlord. Until he does, a housing provider is under no obligation to provide it. In this case, you do not know whether this dog is a pet or a service animal, and you should not make assumptions either way. We would suggest you make your written policy clear to all applicants: you do not allow pets on your property, although you will allow properly-documented service or support animals upon request. At that point, it is up to the tenant to ask for a reasonable accommodation, assuming that his dog is in fact a service or support animal.
You should be aware, though, that there are few hard and fast rules about how a tenant must request a reasonable accommodation. He can make an oral or a written request to you. Also, even if you have a standard “reasonable accommodation request” form, the tenant does not have to use it in order for you to process the request. The tenant also does not necessarily have to make the request before applying for housing. He can make a request at any point during the tenancy. This means that even if he brings a dog on to your property without first notifying you, and you respond by giving him a notice that he is in violation of your no pet policy, he can then make a request for a reasonable accommodation. Although this situation often makes landlords angry, you are not allowed to treat this request differently because he made it after he moved in. Not all tenants understand their rights, and they may be fearful of having to choose between their housing and losing a support or service animal that is important to their health. For that reason, they may not disclose that they have a service animal until after they move in.
Installing an Elevator for a Disabled Tenant
Question: My husband was recently injured. As a result, he now has a disability that makes it very hard for him to walk. He has to use a wheelchair to get around. We live on the second floor of our rental apartment complex and there is no elevator. My brother lives downstairs and helps my husband get down the stairs when he has to go to a doctor’s appointment. I do worry however, what would happen in an emergency. Does my property manager have any duty to put an elevator in the building now that my husband has this disability? Or can we move to one of the first floor units?
Answer: For some multi-family dwellings, the Fair Housing Act provides rules for accessibility for people with disabilities, including whether the building has a duty to install or maintain an elevator.
For buildings that have been designed and constructed for first occupancy after March 13, 1991, and for buildings with four or more units, the rules of accessibility are determined by whether the building already has an elevator. If a building does have an elevator (freight elevator included), then all of the units as well as the public and common spaces must be disabled accessible.
For buildings without an elevator, only ground floor units and any public and common spaces must be disabled accessible.
Under the Fair Housing Act if a building does not already have an elevator, it has no duty to install one. If a building was constructed by federal, state, or local government bodies, or constructed with federal, state, or local government funds, it may be subject to other laws, such as the Rehabilitation Act, the Americans with Disabilities Act, and the Architectural Barriers Act. Those laws have different rules for accessibility than the Fair Housing Act.
Even if a housing provider has no duty to install an elevator for a tenant with a disability, it is possible for the tenant to request a reasonable accommodation to move to a first floor apartment.
If there are no first floor apartments available, a housing provider is not required to evict one of the first floor tenants in order to give the apartment to the person with the disability. In that situation, the tenant with a disability can request to be placed at the top of a waiting list so that he can get a first floor apartment as soon as one is available, or the tenant can ask the landlord to determine whether any first floor tenant is willing to swap apartments voluntarily.