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The Fair Housing Act of 1988 (the “Act”) protects individuals from discrimination in rental and sale of housing that is subject to the Act throughout the United States. The protected classes are race, color, religion, sex, national origin, familial status or disability. It is the last item on this list, disability, at issue in this article,
Only Certain Types of Housing are Subject to the Act:
- Housing with more than four units
- Public/government funded housing
- Housing obtained through government funded loans (if the loans are outstanding)
What is not subject to Act:
- Rental and sale of single family homes, if the homeowner does not sell more than 4/3 houses in any three year period. The underlying principle on the sale of homes is that it must be a private seller versus someone who is a “professional” seller.
- Housing with less than four units that is not government funded.
- Housing with less than four units when one is owner occupied
- Rooms in single family homes that are owner occupied
Obligations of Those Renting or Selling Who are Subject to the Act
In rental situations under the act, landlords are required to make “reasonable accommodations” to anyone that requires service or assistance animals because of a disability or handicap. This includes any member of the family of the renter. One of the purposes of the need for reasonable accommodation is to allow those with disabilities the right to equal housing that without the accommodation, they could not enjoy. Service and assistance animals are not considered pets because they serve a specific function to aid disabled or handicapped individuals in terms similar to crutches or a walker help. In other words, they are not pets so any “no pet” policy does not apply to them, nor do “pet” deposits apply to them. Therefore, the “reasonable accommodation” that a landlord would have to make would merely be allowing an animal for the use of the renter or their family and associates.
The landlord is not required to go to any extreme expense to accommodate, nor to change the nature of the facility which should not even be an issue when the only accommodation that need be made is allowing an animal that would otherwise be barred by a no pet, or a size or species limitation on pets. Therefore, the accommodation that must be made is at no cost whatsoever to the landlord and is, therefore, reasonable. That said, the landlord may not put any restrictions on the size, breed or species of service animal, within reason. In addition, because a service animal is not a pet, but more like a medical device more closely related to crutches or a wheelchair. The landlord may not charge a pet deposit or fee for the very reason that a service animal is not a pet.
Service animals are trained to do a specific task, as will more fully be discussed in the service animal specific articles, though mentioned here to indicate what the landlord is entitled to ask or obtain to assure an animal is not simply a pet. Certainly when someone sees an individual that is blind with their guide dog, it is glaringly apparent why the service dog is needed. There is a clear disability that is minimized by the use and training of the dog. But what happens in a situation where the disability, nor the purpose of the animal are not obvious to an observer? The landlord may ask for only limited information, specifically:
- What is your disability?
- What service is the dog trained to perform for you?
- And there must be a direct nexus between the disability and what the dog does to ameliorate one or more symptoms
The landlord is not permitted any medical records to demonstrate the disability, nor records for the dogs training to perform any particularly duty, nor may the landlord ask for a demonstration of the ability to perform the particular service claimed by the disabled individual.
As to service dogs, or service animals other than dogs that perform a specific beneficial task for a disabled individual, these requests by individuals seeking to qualify as requiring a service animal to aid in their disability, the standards are quite clear. The reasonable accommodation must be made for the individual to access and enjoy the premises in the same fashion any other person would be able to do so, absent a disability. This means that the service animal must be allowed in all areas where any other tenant would be allowed to go, within reason, of course. A service dog, or service animal, need not be allowed in the pool for the complex in which the rental is being made, or in a sauna, or any other areas where common sense should prevail while not deterring from the disabled party’s use and enjoyment of the premises. It is not the service dog that is being accommodated, but the individual needing the service dog that must be accommodated.
The use and enjoyment of the premises by other tenants must be weighed in the equation as well. Many tenants would not, as a matter of course, want some dog swimming in the pool that they use as part of their rental, and they are not required to be subjected to such a thing. The dog wanting to swim is not part of accommodating the service dog’s person.
The Landlord or Rental Agent
There remain open issues as to whether the Act applies merely to service animals, which are taught specific skills to aid a disabled individual, or if it is also applicable to emotional support animals, sometimes called therapeutic animals, or companion animals that are indistinguishable from pets.
There are organizations, such as the Bazelon Institute, which argue the position that all animals helping anyone at any level of disability that wants an animal should receive them under the terms of the Act. This refers to animals other than those taught a specific skill to aid a person having some sort of disability. As to these types of animals, there are different requirements:
- Letter from a medical professional, social worker or mental health professional indicating that the person requires the animal to aid in their treatment, and specifically how it does so.
These letters need be quite specific in setting forth the condition, the fact that it aids the disability by its presence and, in general terms, not merely that the animal aids in calming the individual. Sometimes, emotional support animals do have other functions and do have specific “skills.” Take the example of someone suffering from PTSD. Their emotional support animal may serve the purpose of leveling the moods or crisis moments suffered by their behavior toward the individual suffering from PTSD. In other words, they can perform, and have been trained to perform, an actual service, making them a service animal. On the other side of that coin, the animal may merely be a companion animal for the person suffering from PTSD, untrained in any specific skill, merely present to generally calm the individual. This animal would not, absent training in any specific skill to help, be a service animal, thus categorized as an emotional support or companion animal.
The case law is all over the highway on these matters of emotional support and companion animals, so there is no clear guideline as to whether a landlord has any is no true obligation under the act to make any accommodation whatsoever. Absent the letter mentioned above, indicating in the proper form and with the proper information that the animal is required as part of treatment, there is no chance that any accommodation will be granted. Also, keep in mind, particularly, that a companion animal is nothing more than a pet, and what needs to happen for accommodation to be made is proof that it really is more than a pet and should be otherwise categorized as a type of medical assistive aid.
Obligation of Owners of Animals Protected Under the Act
The owner is required to keep the animal under control at all times and bring the animal back into immediate control if there is an issue. The animal must be leased at all times unless the actual service performed by the dog necessitates that it be off-leash, but the animal must still be under the complete control of the owner.
If the animal is a dog, it is subject to the same licensing and inoculation requirements of any other dog in that local and it is the owner’s obligation to assure this occurs. It would be reasonable for a landlord to ask for these records to assure compliance with local rules and standards in the regard.
What no local can do is require registration of any animal as a service animal, emotional support animal or companion animal required for medical or psychological purposes. If the local cannot require registration of any sort, a landlord cannot do so either, nor require any registration that is wrongfully demanded by any local law or ordinance, quite simply, because it is not legal for any local to implement such a local law or ordinance.
The Landlord is Not Required to Accept All Properly Qualifying Animals
Vicious animals need not be accepted, meaning those with a history of biting or attacking or other behavior that would qualify as vicious. It should be apparent that the purpose of this is to prevent other tenants, or anyone else, from being placed at risk. Even if an accommodation has been earlier made for such an animal and the animal has displayed risky behavior thereafter, a landlord may act to have the animal removed.
This does not mean that a landlord can reject a specific animal merely because of breed. Unfortunately, some dogs have gotten bad reputations, exemplified by Pit Bulls or Cain Corsos or Rottweilers. A dog may not be rightly rejected on the basis of breed alone. The rejection must be based upon the dog’s actual behavior, not anticipation of negative behavior.
Unfortunately, there is a court case that rejected an otherwise acceptable service animal, with no negative history, because of its breed: Pit Bull cross. The problem with case law is that it is one person’s opinion, the judge, based on the facts presented. A second level of appeal could overturn a first level appeal, with more than one judge involved in the decision, but some cases never reach that second appeal. Though this case feels like a bad decision, against an innocent Pit Bull it is the decision remaining “on the books” in that particular jurisdiction.
Not the Only Act or Statute That Applies to Service Animals and Disability Rights
Nothing happens in a vacuum and the Act is not alone in monitoring rights of disabled individuals in the face of equal housing. The American with Disabilities Act (ADA) also applies, details of which are available in other articles here. In a recent memorandum, the ADA has defined service animals as dogs only, yet has a separate provision for miniature horses. This definition does not apply to the service animals under the Federal Housing Act, which is construed with no limitation on the species of service animals. See, Rehabilitation Act Sec. 504.
Knowing your rights under the Fair Housing Act with regard to your service and assistance animals is only a start in knowing where you are allowed to take your animals and what is required of you toward that end. Certain service or assistance animals are allowed everywhere under proper circumstances, some may be precluded from certain places. Airlines generally allow these animals, and others, into the cabin for their flights. Details of all of these issues are provided elsewhere.
One important thing to know is that there are actually no standards or certifications or qualifications for an animal to be “declared” a service or assistance animal. This is true even for animals that have an obvious purpose such as a seeing-eye dog. Though they are often trained by qualified agencies, there really is no government certification or qualification required or available. Service animals need not have any professional training, or may be trained by the owner and user of the animal. Certainly a vital point not just for anyone requiring a service animal to look past a “certification” that has no significance or meaning whatsoever, but to realize that such a “certification” has no meaning or weight under the FHA.