ASSISTIVE (service/companion) ANIMAL RULES
2: You will have to sign an assistive animal addendum to your rental agreement if you are approved.
3: If an animal it is disabled, it does not automatically qualify the animal as an assistive animal
4: No extra fees, rent or security deposits are required for an assistive animal
See more below re assistive animals, verification and pit-bulls
Just because municipal bans are being lifted on pit bulls and other dogs that are perceived as dangerous doesn’t mean that multifamily landlords still may not find comfort in allowing the animals as pets or assistive animals.
Concerns over permitting feared breeds or those that have made headlines for dangerous behavior – specifically pit bulls – at apartments has heightened in recent years. Landlords who fear liability issues have especially raised questions about allowing such animals that provide service or assistance to disabled residents or applicants, or amended pet policies to restrict them all together on the property.
Breed Restriction Laws Gradually Being Lifted
Cities are slowly lifting bans that have kept pit bulls at bay in some cases for more than two decades. Townships in Michigan and Kansas have recently wiped out sanctions, and one Colorado city is talking about tossing a 25-year code.
Regardless of whether a city keeps a ban or dismisses one, landlords will likely hold steady on scrutinizing the animals when a resident or applicant requests to bring one on the property, says a California Fair Housing attorney who hears the steady drumbeat of concern from clients.
“I do not think (the bans) will have any effect on owner’s pet policies,” said Lynn Dover ofKimball, Tirey & St. John, LLP. “I think those who ban pit bulls and other ‘dangerous breeds’ will do so whether there is a city ordinance in place or not. And unfortunately, some residents will try and get around those bans by producing verification of disability and a disability-related need for an assistive animal.”
As April’s Fair Housing Month approached, the firm, which specializes in multifamily law, issued a reminder to clients about the Department of Housing and Urban Development’s (HUD) and Department of Justice’s joint statement issued last year on assistance animals for people with disabilities. The statement confirmed that assistance animals aren’t pets and that breed, size, and weight limitations may not be scrutinized when determining whether an animal should be accepted as an assistance animal. Instead, each animal should be individually considered.
Service Animal Exemption Requests on the Rise
Landlords and policies are being challenged more and more by residents who claim their animal is needed for service or assistance and request an exemption to no-pet policies, Dover says. Landlords frequently report that residents or applicants present documentation that appear to support that an animal is qualified to provide service or assistance to a resident, who may or may not have a disability. Typically, the paperwork comes from one of the Internet service animal registries that offer official-looking service animal apparel and documentation for a fee.
Many times the animal in question is a pit bull, Dover said.
“There is an increase in people going onto a website and paying to get these certifications and other documents. We seem to be getting at least as many, if not more, inquiries then we’ve had in the past,” Dover said.
Clients, she said, are often confused about what defines a service animal and whether companion animals should be considered pets. Many are also unsure what kind of documentation is acceptable for the animals to be allowed.
It’s important for multifamily professionals to realize that trained service and companion animals are types of assistive animals and fall under Fair Housing rules. Denying a resident either of these could ultimately lead to potential fair housing liability.
Determining Disability Is Key to Service Animal Exemption
Kimball, Tirey & St. John often gets inquiries about what residents have to prove for an animal to be accepted under the FHA.
The ultimate determining factor is not whether the animal is classified for service or assistance, rather whether the resident or applicant is disabled and needs the animal because of the disability. Dover said that landlords can require written verification that the resident is disabled and has a disability-related need for the animal.
However, landlords can’t ask about the nature or extent of the disability. They can ask for verification that the person meets the definition of disability under relevant fair housing laws.
Official-looking documents, capes, collars, and badges don’t prove that the person is disabled and has a disability-related need for an assistive animal.
“Sometimes managers get scared because they don’t want to be accused of Fair Housing violations,” Dover said. “But I think it’s important for housing providers to recognize that these types of documents are not a valid form of verification and they are entitled to verification of disability and a disability-related need for the animal unless it’s apparent.”
Property Pit Bull Bans Require Burden of Proof
With regard to pit bulls, landlords must prove that allowing pit bulls, or any other breed for that matter, as assistive animals pose an undue financial or administrative burden in order to legally keep them off the property.
And just because of the current insurance provider – which also has fair housing responsibilities to the extent of ensuring housing – denies coverage is not enough for landlords to refuse the animals. A landlord is expected to ask their insurance carrier to make an accommodation for a disability-related situation.
In the event the carrier doesn’t make an accommodation, the burden is on the landlord to seek alternative insurance from a carrier that will make an accommodation for the disability. If no comparable insurance provider can be found, only then can a landlord have a valid defense that allowing a pit bull is an undue burden, Dover said.
At the same time, landlords would need to battle city hall over a municipal ban if a resident or applicant proved a disability and disability-related need for a pit bull or any other banned animal.
“If a city had a pit bull ban, I think a landlord would have a responsibility to request the city to waive the ban when a resident wanted to have a pit bull as an assistive animal,” Dover said. “Cities cannot take away rights given by the federal or state government, and cities also have fair housing responsibilities.”
Legal Alert
June 2004
New DOJ and HUD Guidelines for Disability Accommodation Under the
Fair Housing Act
The Department of Justice (DOJ) and the Housing and Urban Development Department (HUD)
recently issued new guidelines regarding disability accommodations under the Federal Fair
Housing Act. While most of the guidelines simply confirm what we have been telling our clients regarding disability accommodations, there are several issues contained in the new guidelines that impactthe way in which rental property owners and managers may obtain verification of disabilities and
/or the need for an accommodation.
What kinds of information, if any, may an owner or manager request from a person with an obvious
or known disability who is requesting a reasonable accommodation?
An owner or manager is entitled to obtain information that is necessary to evaluate whether a
requested reasonable accommodation is necessary because of a resident or applicant’s disability.
Under the new guidelines, if a person’s disability is obvious, or otherwise known to the owner or
manager, and if the need for the requested accommodation is also readily apparent or known, then
the owner or manager may not request any additional information about the person’s disability or
the disability-related need for the accommodation. For example, if an applicant or resident who is
obviously blind is requesting that he or she be allowed to keep a seeing eye dog as a disability
accommodation, even though the property does not allow pets, the owner or manager may not
require the person to provide any additional information about the disability or the need for the
accommodation, since both are readily apparent.
If the person’s disability is known or readily apparent to the owner or manager, but the need for the
accommodation is not readily apparent or known, then the owner or manager may request only
information that is necessary to evaluate the disability-related need for the accommodation. For
example, a resident who is obviously blind is requesting to have the windows changed as a
disability accommodation. The disability is obvious, but the need for having the windows changed
is not. The owner or manager may ask the person to provide information about the disability-
related need for the change.
If a disability is not obvious, what kinds of information may an owner or manager request
from the person in support of a requested accommodation?
Ordinarily, an owner or manager may not inquire as to the nature and severity of a person’s
disability. However, in response to a request for a reasonable accommodation, an owner or
manager may request reliable disability-related information that (1) is necessary to verify that the
person meets the Fair Housing Act’s definition of disability; (2) describes the needed
accommodation; and (3) shows the relationship between the person’s disability and the need for
the requested accommodation. Under the new guidelines, and depending on the person’s
circumstances, information verifying that the person meets the Act’s definition of disability can
usually be provided by the person themselves (for instance, proof that a person under 65 years of
.
age receives SSI or SSDI benefits, or a credible statement by the individual themselves). A doctor,
or other medical professional, a peer support group, a non-medical service agency, or a reliable
third party who is in a position to know about the person’s disability may also provide verification of
a disability.
The guidelines go on to say that once an owner or manager has established that a person meets
the Act’s definition of disability, the owner or manager’s request for documentation should seek
only the information that is necessary to evaluate if the reasonable accommodation is needed
because of the disability.
It is important to remember that California has a much less stringent definition of “disability” than
that of the federal Fair Housing Act. Although these are federal guidelines, whenever state law
gives greater rights than federal law, state law must be followed. Therefore, in attempting to
comply with the new guidelines, owners and managers should request information necessary to
verify that the person meets the definition of disability under California law (rather than under the
federal Fair Housing Act).
The guidelines seem to indicate that owners and managers may no longer insist that verification of
a person’s disability come from a health care provider. As indicated above, proof that the person is
receiving some sort of disability benefits must be accepted as proof of disability; also, a “credible
statement” by the person themselves, or from a peer support group, non-medical service agency,
or “reliable third party who is in a position to know about the person’s disability” must be accepted.
Unfortunately, this may open the door for potential abuse.
The guidelines also confirmed that you cannot deny an accommodation or modification because
the person didn’t follow the company’s formal disability procedure, or because the person made
the request orally, rather than in writing.
Conclusion
It is important to note that this is not a new law, or even a written “requirement.” However, we
believe it is the standard which the DOJ and HUD, both of which prosecute fair housing
complaints, is going to hold owners and managers to in the future. Additionally, although the
California Department of Fair Employment and Housing (DFEH) have not issued any formal
comment on the new guidelines, we expect that they will likely follow them.
As the number of fair housing lawsuits against property owners and managers increases,
so does the importance of ensuring your compliance with fair housing regulations. Kimball,
Tirey & St. John LLP offers fair housing publications, forms, audits and training on all
aspects of state and federal fair housing laws.
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