Metro Apartment Manager, February 2006

Q: Generally, I don’t allow pets. I did rent to someone with a seeing eye dog one time. Now I have a tenant who simply wants a cat as a “companion animal.” Do I have to do that? I’m inclined to just give her a 30-day notice and ask her to leave.

A: Coming between people — and not just tenants — and their pets is often more perilous than coming between a mother and her first born. If you allow pets, you greatly expand your universe of potential tenants. I believe, too, that good pet owners make great tenants, because it’s harder for them to move and people who take care of their pets generally take care of their home as well. I suspect, though, that roughly half of rental housing doesn’t allow pets. Some tenant advocates would like to prohibit landlords from not allowing pets. The Province of Ontario does exactly that. The City of Toronto even makes pet owners a protected class.

Interestingly, the Fair Housing Act never mentions animals. But a joint statement issued a year and a half ago by the Department of Justice and the Department of Housing and Urban Development refers several times to service animals. According to the Fair Housing Institute, a consultant to housing professionals, service animals are “guide dogs, signal dogs or any other type of animal that has been individually trained to perform a task for the benefit of a disabled individual.” Most are dogs, but other animals — including monkeys and even miniature horses — have been so trained. While helping someone who is blind or seeing-impaired is the most obvious type of help, other animals can help with sound discrimination or mobility. I have one tenant with a dog that helps pick stuff up which she, in a wheelchair, has difficulty doing. And, while no one knows why, some animals have the ability to alert an individual to an oncoming seizure.

Use of such animals is protected by both federal and state law. And not just in housing. The Americans with Disabilities Act and other laws provide protection in places of public accommodation, in modes of transportation, and in the workplace.

A companion animal, on the other hand, isn’t trained to do anything. Its mere presence — its companionship — is all it provides. While the term service animal is used frequently by those federal agencies, the terms companion animal, or emotional support animal, or therapy animal aren’t. Are such animals protected by law? Court opinions are mixed. Some disability rights organizations, though, argue there is no such distinction. The Bazelon Center for Mental Health Law believes a landlord needs to waive no-pet rules for people with “emotional support” animals.

The very first cases on point was Majors v. Housing Authority of the County of DeKalb, Georgia. In this 1981 case (before there was a fair housing act, so decided under the Rehabilitation Act, which covered public housing), Laura Majors, who had a history of psychological problems, provided the housing authority with letters from a doctor and several social workers attesting to her “emotional dependence” on her pet dog, Sparky. The housing authority’s argument was that its no-pet rule was fair and reasonable. The court ruled, however, that it “could easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires… the companionship of a dog. Such accommodation falls well within the kind of reasonable accommodation required by the regulation…”

But courts still require a nexus — a connection — between the animal and the disability. In Nason v. Stone Hill Realty Assn., the Massachusetts superior court found that, while a public housing tenant had a letter from a doctor saying “there would be serious negative consequences for her health if she was compelled to remove the cat,” the tenant “failed to meet her burden of proving that the cat is necessary due to her handicap” or that her “symptoms can be treated only by keeping the cat in her apartment.” The important word there is necessary.

Two other cases, In re Kenna Homes Coop. Corp., a West Virginia supreme court case, and Prindable v. Association of Apartment Owners of 2987 Kalakaua, a federal district court case in Hawaii, tried to use training as a method of differentiating between pets and assistance animals. In the latter case, the tenant believed “that his personal safety will be improved if he were to have a dog.” But the court looked for, and failed to find “something — evidence of individual training — to set the service animal apart from the ordinary pet.”

So there is a difference between an assistance animal and a companion animal, since courts ask for proof that the animal does indeed assist a disabled person in using and enjoying the housing. That burden is easy with an assistance animal and less so with a companion animal.

But is there a practical difference? It depends, I believe, on your verification process. You are allowed to verify the existence of a disability and that the requested accommodation is necessary to enable the tenant to use and enjoy the housing. The major landlord trade groups in Oregon all have a form for this purpose. But that DOJ-HUD joint opinion (it’s on my web page) says a landlord can’t require any particular form be used or indeed that the request must be in writing. Still, landlords like procedures and documenting stuff in writing. But if someone blind comes to apply and that person has a seeing-eye dog along, should you hand over a form that has a doctor or other professional stating the obvious? Doing so could result in a charge of unnecessarily burdening the applicant and delaying tenancy approval, which can be a fair housing violation. It’s probably simpler to have the manager or other landlord representative complete the form, stating the obvious.

With mental disabilities — and that’s where we deal with companion animals — it’s different. While the disability might or might not be obvious, the necessity of the companion animal is not likely to be, so the verification process becomes vital.

I prefer to manage the verification process because I don’t like to rely on notes scribbled on prescription pads or similar modes of casual communication. I have sometimes sent a cover letter along with the verification form when there are special circumstances I think the health care provider should know of (like the animal being requested is a pit bull).

But there are times when I’m happy to let the tenant manage the process. For instance, the Oregon Advocacy Center provides a sample verification letter it urges health professionals to use. It contains everything I as a landlord need to know and more. So if a tenant comes armed with that, my job has been made easier.

Remember that there are only three reasons for denying a reasonable accommodation: 1) it would fundamentally alter the nature of your program; 2) it would impose an undue financial or administrative burden; or 3) it would present an actual, verifiable direct threat to others. Allowing a normal service or companion animal doesn’t fit any of those. Remember, too, the cost trade-off. Allowing an animal can be a hassle and inconvenience; fighting a fair housing case can be very expensive.

My usual reminder: each circumstance is unique, so your case will be different. Before you act, be certain about what you do. Don’t rely solely on this general advice; read the law and consult others as appropriate.

This entry was posted on Tuesday, February 28th, 2006 at 5:25 pm and is filed under aid animals, pets, discrimination. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.