When thinking about assistance animals, don’t think four legs, think two wheels, as in wheelchair. Emotional support and service animals are not pets, they are assistive aids like wheelchairs. Just as the Fair Housing Administration (“FHA”) requires that residential apartment communities make reasonable accommodations for wheelchairs so that the people who need them can fully use and enjoy their dwelling, FHA also requires that residential apartment communities make reasonable accommodations for assistance animals so that the people who need them can fully use and enjoy their dwelling. (See 42 U.S.C. § 3604(f)(3)(B)).
The big question is whether the tenant actually has a disability. Federal law defines disability as: (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such impairment. (See 42 U.S.C. § 12102).
In making a request of the landlord for a reasonable accommodation of an assistance animal, the tenant should make a written request that includes a statement that the tenant has a disability. Note that the tenant is not required to name the disability, and the landlord cannot ask the tenant to name the disability. The written request should explain how the assistance animal will be helpful. The landlord has every right to request supporting documentation from a doctor or therapist and has every right to look into the qualifications of the medical provider.
The issue of the animal’s training may be tricky. On one hand, the tenant should provide proof that the animal has been individually trained and that it will work for the benefit of the tenant. On the other hand, the landlord cannot require proof that the animal has been trained or certified as an assistance animal per se. (See Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) and Green v. Housing Authority of Clackamas County, 994 F.Supp 1253 (Or. 1998)). Just as you cannot charge a special deposit for a wheelchair, you cannot charge a pet deposit for an assistance animal. However, the tenant must clean up after the animal, and if the assistance animal causes damage, the tenant must pay for it. Further, if the animal is dangerous or interferes with other tenants’ enjoyment of their dwelling, an argument may be made that acceptance of that particular assistance animal is not a reasonable accommodation.
HUD regulations pertaining to reasonable accommodations can be found at: 24 C.F.R. § 100.204