On April 25th, 2013 the Department of Housing and Urban Development issued an update letter FHEO-2013-01 regarding service and assistance animals with direct application to residential housing. This letter tied together three laws:

  • The Fair Housing Act: which applies to both public and private residential housing
  • Section 504 of the Rehabilitation Act of 1978: covering housing providers that receive federal financial assistance (such as Section 8)
  • The American with Disabilities Act: which applies to public and private handicapped access

Clarification:

This letter clarified the definition of a service animal; the definition of an assistance animal; and when and where a landlord may inquire about a service or assistance animal.

There are two distinct categories of animals that help disabled people. 

Service Dogs (not animals)

  • Are trained to work or perform a task for the benefit of an individual with a disability
  • Exclude dogs that are used solely for emotional support 

Assistance Animals

  • Does not need to have training
  • May be any type of animal – aka: companion animals

It clarified that “an assistance animal is NOT a pet. It is an animal that works, provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a  person’s disability. Assistance animals perform many disability related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing  emotional support to persons with disabilities who have a disability related need for such support.”

Basic Rules for Service Dogs and Assistance Animals

  • ·         These animals are not considered pets
  • Landlords cannot charge a pet fee or deposit
  • Landlords cannot limit the size, breed or weight of the service dog or assistance animal.

Challenges: Reasonable Accommodation Requests

  • Onsite managers and/or property managers cannot ask people with obvious disabilities  if they need an accommodation request,

In other words:

  • If a tenant is obviously blind, deaf, or disabled the landlord cannot ask about the person’s disability, nor can you ask for proof of disability, nor can you require proof of a service dog’s training, license or certification

But, according to the HUD guidance letter, if a person brings a service dog with them you can ask:

  • Is this a service animal that is required because of a disability?
  • What work or tasks has the animal been trained to perform?

For individuals with disabilities where the disabilities are not readily apparent it is okay. to ask for reliable documentation of an:

  • ·         Individual’s disability
  • ·         Their disability related need for an assistance animal.

You might consider using a reasonable accommodation form (in these cases when the disability is not readily apparent, to establish and confirm a disability that requires the use of a service dog or assistance animal (which of course you want to file in the tenant file).  You may also want to draft a pet policy for your rentals that sets a stage for pets you can accept.     Remember Livestock (i.e. farm animals) is only allowed in some cities.

You will want to include on the form that the disability is not readily apparent and that is why the form is being generated 

Denial of Rental to Service Dogs and Assistance Animals

There are cases when it is legal to refuse rental to a service animal:

  • ·         When it is clear that an animal is out of control and the handler does not take effective action to control the animal.
  • ·         Not house broken, or house trained
  • ·         Threat:  If the animal poses a clear direct threat to the health and safety of others, that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices or procedures
  • ·         Prior injury to others:  The specific animal has a history of injury to others.

Where Can a Tenant Take a Service Dog?

Service dogs must be permitted to accompany the individual with a disability to all areas of the rental location where members of the public are normally allowed to go. 

  • Swimming pool
  • Playground
  • Laundry room
  • Recreation room
  • Leasing office

Confused?

There are resources to find more information on this complicated subject. You can log on the HUD website and download and reread the letter.

http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf  

Editor’s Note:  Use AOA’s form #122 – the Comfort/Service Animal Agreement. 

Clifford A. Hockley is President of Bluestone & Hockley Real Estate Services, greater Portland’s full service real estate brokerage and property management company..  He is a Certified Property Manager and has achieved his Certified Commercial Investment Member designation (CCIM).  Bluestone & Hockley Real Estate Services is an Accredited Management Organization (AMO) by the Institute of Real Estate Management (IREM).