Article Scope and Purpose

This article will discuss the Fair Housing Act’s anti-discrimination requirement that requires landlords to provide reasonable accommodations (often in the form of support animals) to tenants with disabilities. It answers common questions of both landlords and tenants. It also addresses how landlords can identify or deal with those tenants that are taking advantage of landlords or anti-discrimination laws.

This article Answers:

• Summary on Leasing to Tenants with Animals
• What is a “reasonable accommodation”?
• How should tenants/landlords make/require a reasonable accommodation request?
• What do Landlord Violations, Denials, and Delays Look Like?
• How Many Service Animals Can a Tenant Have?
• Must the Service Animal have specific Training?
• Many More Questions and Answers.

If you already know the basics of LEASING AND SUPPORT ANIMALS and jump straight to the Q&A section below to answer your specific question.

SUMMARY

If a tenant or prospective tenant claims they have a disability that requires the aid of an animal, what should a landlord do? How does a tenant with a genuine disability make a proper request to a landlord for an assistance animal or service animal? Should landlords prohibit pets altogether? This article will answer these questions and provide all the essential information so landlords and tenants can get the help and protection they need. As usual, this information is not legal advice but to educate only. Call our firm and set an appointment to discuss your specific circumstances.

Basically, landlords and tenants have rights, and sometimes those rights are at odds. Landlords have the right to protect their property from destructive tenants or their pets, and tenants have the right to meet their basic needs, both physical and mental, which sometimes also means having a support animal. But when can a tenant demand that their animal live with them, and when can landlords deny animals on the premises?

Generally, private persons (people that are not government employees or acting on behalf of government agencies) don’t have to comply with disability and non-discrimination requirements. However, both the federal and state Fair Housing Acts (“FHA”) require landlords (that own or rent 4 or more units or where the unit(s) has a mortgage under a federal program) to make “reasonable accommodations” for persons with diagnosed “disabilities.”

Individuals with a “disability” (as defined under the FHA) may request to keep an assistance animal as a reasonable accommodation to a housing provider’s pet restrictions. Housing providers to which the FHA applies, cannot refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

Before a tenant requests an accommodation or a landlord grants one, they should verify whether the landlord is covered by the FHA. If the landlord is covered by the FHA, and the tenant wishes to obtain a “reasonable accommodation” (or exception to a “no pet” rule) then they should:

• (1) make a formal written request to the landlord;
• (2) include the specific requested reasonable accommodation;
• (3) include medical evidence of their specific disability (as outlined below),
• (4) provide evidence that the requested accommodation (i.e. the animal) is connected to the disability and will help overcome material aspects of the disability (there is a measurable link to the request and the disability);
• (5) ask the landlord to respond within a reasonable time period; and
• (6) keep a copy of your request and other communications with the landlord. Landlords are not entitled to know the medical diagnosis.

If a tenant wants to “require” a landlord to make a “no pet” policy exception, then the tenant should provide the landlord with a doctor’s note that:

• (1) is from an M.D. specializing in mental health; and
• (2) containing a statement with the following information:
• (a) the tenant has a disability (as defined below)(though they are not required to disclose the specific disability, only that it is visible and obvious or non-visible and not readily apparent);
• (b) due to the disability, the individual cannot accomplish one or more major life tasks (as defined below); and
• (c) the animal materially aids the tenant in accomplishing the major life task(s) that they would not otherwise be able to accomplish without it.

Landlords that wish to know if they are required to make the requested accommodation should ask for the points, and possibly consult an attorney to determine the adequacy of the tenant’s actions.

If a tenant believes they have been unlawfully discriminated against by either a denial of a housing application based on disability or other protected status (race, gender, sex, or sexual orientation) or a reasonable accommodation was unlawfully denied, they should seek counsel.

For more detailed information and answers to specific questions, continue reading below. If you have a question that is not answered below, please contact our firm for a consultation.

QUESTIONS AND ANSWERS

Are there laws that prohibit discrimination by landlords against tenants?

Yes. Both the federal Fair Housing Act and the Utah Fair Housing Act prohibit discrimination by landlords against tenants (or by sellers of real property against buyers) on the basis of race, color, sex, religion, national origin, disability, source of income, familial status, sexual orientation, or gender identity. (The state’s law mirrors the federal law, so hereafter I will not distinguish them and refer to both as the “FHA”). Other laws like the Americans Disabilities Act also may apply in certain circumstances.

What is discrimination and how do Landlords discriminate?

Generally, it is treating people or things of a like group differently. A general definition of housing discrimination is when a landlord refuses to rent or decides to terminate a tenancy or treats one tenant/home buyer differently than another because of that tenant’s race, color, sex, religion, national origin, disability, source of income, familial status, sexual orientation, or gender identity. If the acts are discriminatory, the tenant may file a case with UALD and UD.

However, just because a landlord may fail or refuse to meet your requests for repairs, be unresponsive to small problems, and generally treat their tenants badly, their actions are not necessarily discriminatory or illegal. They may just be unfair or a breach of the lease agreement.

Does the Fair Housing Act apply to every landlord or just some?

Under 42 U.S. Code § 3604, the FHA applies to most landlords, but not all. It applies if you own or hold for rent and sale four (4) or more houses or rental units at the same time; If the home is a single family home and was purchased using federal funds; also applies to Mortgage lenders, Insurance agencies, Realtors and management agencies, and State and local governments, including housing authorities. So, if you are a landlord that wishes to discriminate against people with disabilities that need service animals, do not own or rent more than 4 units. If you have 4 or more units, you must allow reasonable accommodations and not discriminate.

From a constitutional standpoint, the First Amendment generally grants private individuals the right to discriminate and state unpopular opinions. However, at some point, a private individual or business becomes too large and stops acting as a private person because it performs public services. If an individual provides a sufficient number of services or products to the public, it loses the constitutional right to discriminate and must follow federal or local anti-discrimination laws. According to the FHA, that point is when an individual owns or rents 4 or more homes or rental units.

What accommodations “must” landlords make?

No. Generally, the FHA requires landlords only to make “reasonable accommodations” for persons with “disabilities.”

The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a “no pets” policy for a support animal generally qualifies as a “reasonable accommodation.” So, an exception to the “no pet” policy must be made if (1) a genuinely disabled person (2) requests an exception to the rule, and (3) a different accommodation is unacceptable to the disabled person.

 What is a “disability” and what is a “reasonable accommodation”?

Under the FHA, a disability is a physical or mental impairment that substantially limits one

or more major life activities. While some impairments may seem invisible, others can be readily observed. Observable impairments include blindness or low vision, deafness or being hard of hearing, mobility limitations, and other types of impairments with observable symptoms or effects, such as intellectual impairments (including some types of autism), neurological impairments (e.g., stroke, Parkinson’s disease, cerebral palsy, epilepsy, or brain injury), mental illness, or other diseases or conditions that affect major life activities or bodily functions.

Observable impairments generally tend to be obvious and would not be reasonably attributable to non-medical causes by a layperson. Certain impairments, however, especially including impairments that may form the basis for a request for an emotional support animal, may not be observable. In those instances, a housing provider may request information regarding both the disability and the disability-related need for the animal. Housing providers are not entitled to know an individual’s diagnosis.

Landlords may require evidence of the disability and determine whether the evidence is true and accurate. Landlords cannot deny a reasonable accommodation if the evidence is not given, but they are not required to make the accommodation until the evidence is provided.

What are the different classifications of pets and helping animals?

• A pet is an animal that is lawfully owned by a person but does not provide measurable aid to a disabled owner with their specific disability. A pet is not a companion animal, assistance animal, or service animal.
• A Service Animals is not a pet. It is a trained working animal that helps people with their disabilities. It is an animal that aids a disabled person with a physical task directly linked to their disability, like hearing or seeing. A service animal is specially trained for that task.
• Other Support Animals (i.e., Companion Animals, Assistance Animals, Emotional Support Animals) are not pets, so long as they are working animals that materially help people with their disabilities. They must help people who suffer from a diagnosed mental disorder (or disability) that substantially limits a person’s ability to perform major life activities like caring for themselves, working, or learning. Those animals provide measurable aid to accomplish these tasks. If they don’t then they are more likely a pet.  These animals need not be specifically trained.

What is a “reasonable accommodation”?

A “reasonable accommodation” is any accommodation that does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing.

For example of a reasonable accommodation:

• (1) if a tenant is blind, a reasonable accommodation would be to allow the tenant to install a light alarm for a doorbell;
• (2) allowing a tenant confined to a wheelchair to install their own temporary ramp;
• (3) providing an exemption to a no pet policy for a blind person with a seeing-eye dog; or
• (4) providing an exemption to a no pet policy to a tenant with a mental or emotional “disability” (as defined above), after the tenant provides reasonable evidence of the non-visible disability (i.e. provides the landlord with a note from an M.D. specializing in mental health stating the that the individual has a disability (as defined above, but not requiring disclosure of the specific disability) and that the animal helps the individual accomplish one or more major life task that the individual would not otherwise be capable of accomplishing without it due to the disability).

When can a landlord deny a reasonable accommodation?

A landlord can deny a tenants request for a reasonable accommodation if any one of the following apply: (1) the landlord does not rent 4 or more houses or units (The landlord rents a house or apartment that is not covered by the Fair Housing Act); (2) the tenant is not disabled; (3) The animal would cost your landlord a lot of time or money; (4) The animal would change the nature of the housing services the landlord provides; or (5) The landlord has actual evidence that this animal would damage the property or endanger other tenants.

Is a request for an exception to a general “no pet” policy a reasonable accommodation?

Yes, in almost all circumstances. The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a “no pets” policy for a support animal generally qualifies as a reasonable accommodation, and it must be made if requested.

How should Tenants make a reasonable accommodation request for a support animal?

Before a tenant requests an accommodation or a landlords grants a reasonable accommodation, they should verify whether the landlord is covered by the FHA.

If the landlord is covered by the FHA, and the tenant wishes to obtain a “reasonable accommodation” (or exception to a “no pet” rule) then they should:

• (1) make a formal written request to the landlord;
• (2) include the specific requested reasonable accommodation;
• (3) include medical evidence of their specific disability (making sure it meets the requirements for a “disability” as defined by the FHA),
• (4) provide evidence that the requested accommodation (i.e. the animal) is connected to the disability and will help overcome material aspects of the disability (there is a measurable link to the request and the disability);
• (5) ask the landlord to respond within a reasonable time period; and
• (6) keep a copy of your request and other communications with the landlord. Landlords are not entitled to know the medical diagnosis.

If a tenant wants to “require” a landlord to make a “no pet” policy exception, then the tenant should provide the landlord with a medical that:

• (1) is from an M.D. specializing in mental health; and
• (2) containing a statement with the following information:
• (a) the tenant has a disability (as defined below)(though they are not required to disclose the specific disability, only that it is visible and obvious or non-visible and not readily apparent);
• (b) due to the disability, the individual cannot accomplish one or more major life tasks (as defined below); and
• (c) the animal materially aids the tenant in accomplishing the major life task(s) that they would not otherwise be able to accomplish without it.

If the landlords must make exceptions to the “no pet” rule, what can they do to protect the real property?

If a landlord determines that a requested accommodation is reasonable, the FHA does not disallow landlords to set parameters to the accommodation that are reasonable in return. For example (1) dog feces must be picked up immediately upon defecation, (2) limit the number of animals (see below), (3) limit the types of animals (see also airlines refusing to allow exotic animals on airplanes under the ADA), (4) requiring official service animal training and house training (see below), etc.

Does a landlord have to grant a request immediately?

No. If a tenant makes a requested accommodation, the landlord has a reasonable time to determine the tenants’ disability status and whether the request is reasonable.

Can a landlord propose a different accommodation than the requested one?

If the request is reasonable or unreasonable, a landlord may propose an alternative accommodation, if appropriate. However, deference is given to the disabled person’s choice (they need not accept the alternative) because they understand their disability best. Ultimately, if (1) the requested accommodation is not an “undue financial or administrative burden” and (2) the tenant does not agree to the alternative accommodation, then (3) the landlord must provide the accommodation requested.

Are landlords required to make an exception to the “no pet” policy for emotional support animals (opposed to “trained service animals” like seeing-eye dogs)?

If a tenant wishes to require a landlord to make an exception to a no pet policy under the FHA for an emotional support animal, the tenant must demonstrate a relationship between his or her disability and the companionship of the animal. For example: if a disabled person has clinical depression and having a service animal provides them with the necessary motivation to get out of bed, care for themselves, go to work, or other required tasks to function then there is a meaningful connection between the disability and accommodation needed. In most cases, a letter from a doctor or therapist explaining the need for an emotional support animal is sufficient. E.g., Castellano v. Project Sentinel, Inc., 181 F. Supp. 3d 798 (E.D. Cal. 2016).[1]

Once the landlord has been made aware of the disability, and the Tenant has made a request for a reasonable accommodation, the landlord must identify if the accommodation is reasonable. A landlord may take a reasonable time to determine if complying with a requested exception to the “no pet” accommodation is reasonable and legal. See Arnal v. Aspen View Condominium Association, Inc., 226 F.Supp.3d 1177, 1186 (D.Colo., 2016).

How can landlords protect their property if required to make an exception to the “no pet” rule but can’t require a pet deposit?

Require a large deposit from everyone that applies, sufficient to cover an animal if an animal accommodation is required. Make monthly or quarterly offsets against the security deposit. Landlords should make monthly inspections of the property and deduct from the deposit all major or minor repair costs for any damage done to the property by the animal. Require the deposit to be restored to the original amount every month. We recommend this be included as a term of each contract.  This allows landlords to mitigate the risks of tenants moving out and leaving the landlord holding the bag or being forced to seek legal remedies.  

What should landlords not do when making or refusing to make accommodations?

Under the FHA, landlords cannot (1) increase the standard security deposit required, (2) require a pet deposit that isn’t required of other tenants; or (3) actually or constructively deny a reasonable request for accommodation.

According to the FHA, Landlords cannot demand additional money down (i.e. a pet deposit) to protect the property from likely damage caused by the service animal. This would have a discriminatory effect against poorer disabled persons by preventing them from renting a place they could otherwise afford.

When does a landlord break or violate the FHA reasonable accommodation requirement?

A violation occurs when the “disabled resident” or prospective resident is denied a reasonable accommodation or denied residency based on their disability. Until an accommodation request is denied, there is no discrimination under the FHA. See 42 U.S.C. § 3604(f)(3)(B).

Denials can be “actual” or “constructive.” An actual denial would occur when a landlord explicitly says, “No. I will not make that [insert reasonable accommodation request made by the tenant].” A constructive denial occurs when a landlord fails to act reasonably when granting or denying a reasonable accommodation. For example, according to a Colorado federal court, if the landlord causes “an indeterminate delay” in responding, then  the “delay may have the same effect as an outright denial.” Arnal held that the “continued efforts to seek additional information, and [a] continued delay in granting the accommodation, constitutes an actual or constructive denial.”

Ultimately, landlords should not cause undue delay, continue to seek information, or give an “indeterminate delay.”  No official boundaries are given for this “indeterminate” standard or “constructive denial.” So a determinable/defined delay could be given (say a week or two to have your in-house counsel review whether the request is reasonable, or to verify a person’s disability or the link between the disability and the requested accommodation is reasonable).

Can Landlords limit the number of Service Animals or emotional support animals allowed on the premises?

Multiple animals are likely beyond the reasonable accommodation standard, as it is improbable that multiple animals provide a material impact on the improved ability to function with the tenant’s disability.

Official Service Animal Training as a Requirement

As a background, the ADA and the FHA differ on whether specific training is required. Under the FHA, training is not a requirement, but under the ADA is a requirement.

Courts remain divided on whether or not the animal must be trained as a “service animal” to require a landlord to make an accommodation. This may be a basis for denying the accommodation, i.e. because the tenant has failed to provide proof that the animal is a service animal under the meaning of the Fair Housing Act. Courts generally agree that the case law applying to the ADA applies to the FHA. Under the ADA’s definition, “animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.” Thus, I think this is a weak position, even though some courts have followed it. For an example of a state court supporting the licensing requirement, see Kenna Homes Coop. Corp., 210 W.Va 380, 384 (W.Va. 2001); Prindable v. Assn. of Apt. Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1249 n 7 (D. Haw. 2003). More modern cases seem to disagree with the licensing approach and cite these cases. Thus, you risk losing if making this requirement of the Tenant. Keep in mind that ADA and HUD regulations construe service animals broadly.

Landlord Last-Ditch Efforts

The last possible way to handle this may be through proving that the individual or the service animal presents an actual threat to the residence. You may ask if the dogs have ever bitten anyone in the past. If they have that may be grounds to deny the accommodation, however, this will require additional research.

Other Applicable Case Law

The only local case I could find supporting the landlord’s position on issues of FHA and eviction of tenants was Malibu Investment Co. v. Sparks, 996 P.2d 1043 (Utah,2000). The UT Supreme Court held that: (1) tenant’s failure to cure all violations listed in landlord’s seven-day notice justified eviction, under MHPRA; (2) tenant had standing to assert claims under Federal Fair Housing Act (FFHA) and the Utah Fair Housing Act (UFHA); and (3) tenant failed to establish discrimination claim under either disparate treatment or disparate impact theory. A notable rule in the option regarded pretexts for discrimination through evictions: if a landlord presents multiple good faith justifications for an eviction, the tenant must show that the justifications are merely a pretext for discrimination; otherwise, any alleged instance of discrimination is immaterial and the tenant cannot recover under a disparate treatment theory.

Other Cases involving Discrimination and the FHA in UT and the Tenth Circuit

Adler v. American Home Mortg. Servicing, Inc., 882 F. Supp. 2d 1237 (D. Colo. 2012)

Bangerter v. Orem City Corp., 46 F.3d 1491, 8 A.D.D. 1097 (10th Cir. 1995)

Cinnamon Hills Youth Crisis Center, Inc. v. St. George City, 685 F.3d 917 (10th Cir. 2012)

Keys Youth Services, Inc. v. City of Olathe, Kan., 75 F. Supp. 2d 1235 (D. Kan. 1999)

Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343 (10th Cir. 1987)

Roe v. Housing Auth. of City of Boulder, 909 F. Supp. 814, 14 A.D.D. 240 (D. Colo. 1995)

Steele v. Title Realty Co., 478 F.2d 380 (10th Cir. 1973)

U.S. v. Hillhaven Corp., 960 F. Supp. 259, 22 A.D.D. 980 (D. Utah 1997)

U.S. v. Scott, 788 F. Supp. 1555 (D. Kan. 1992)

Utah Labor Com’n v. Paradise Town, 660 F. Supp. 2d 1256 (D. Utah 2009)

Other Helpful Links:

https://www.utahlegalservices.org/node/10/companion-animals-and-service-animals

https://www.hud.gov/program_offices/fair_housing_equal_opp/assistance_animals

https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

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Footnotes.

[1] Castellano v. Project Sentinel, Inc., 181 F. Supp. 3d 798 (E.D. Cal. 2016) (sufficient support existed for waiving a general no pet policy where a tenant’s treating physician provided managers with documentation indicating that tenant suffered from anxiety disorder and depression that would be eased by an emotional support animal)(this case was also cited by the Colorado court in Arnal). Tenants need not provide detailed medical histories, and Landlords may not demand actual medical records, however, if the Tenant wishes to prevail in court, they must establish a clear history of the disability.