As an owner of property, a landlord generally has the legal right to allow or prohibit tenants from having pets in a rental property. Many landlords believe that having pets causes unnecessary damage to the property while others think that having pets allows the landlord to increase the rent and expand the scope of potential renters. Regardless of whether a landlord decides to allow pets, under state and federal fair housing laws a landlord must allow assistive animals in their rentals. This statement is so often repeated, that landlords don’t think of its importance and the intricacies surrounding it.
Many landlords confuse the Americans with Disabilities Act (ADA) with the Fair Housing Acts, both of which have provisions regarding assistive/service animals. While in certain cases the laws can overlap, in single family homes generally only fair housing laws apply. The ADA applies to areas of public accommodations and commercial facilities. Among other things, fair housing laws apply to the sale and rental of homes. For example, in an apartment complex, the ADA would apply to the areas where any public person could go, but not areas limited for the tenants and their guests. This may only consist of the manager’s office. On the other hand, fair housing laws would apply to the private areas where only the tenants and their guests could go such as a pool or the individual apartments. The difference is significant.
Last year, the Department of Justice (DOJ) significantly limited what animals can qualify as “service animals” under the ADA. Specifically, the DOJ determined that only dogs could be service animals, and the animal could not qualify if it was only being used for emotional support. The Department of Housing and Urban Development responded clarifying that this limited standard does not apply to fair housing laws and that any animal may qualify as an “assistive animal” provided the animal “affords the disabled individual equal opportunity to use and enjoy a dwelling, assuming that the animal does not pose a direct threat” to others. If there is a relationship between the disability and the service the animal provides, the landlord must allow the animal as a reasonable accommodation.
Because of this broad language used by HUD, it is clear that any animal may qualify as an assistive animal, whether it is for physical or emotional support. This can include animals such as dogs, cats, miniature horses, pigs, iguanas etc. When a landlord has a no pet policy, and a tenant asks for an accommodation to allow their assistive animal, the landlord must remember that if the person has a disability, and there is a connection between the disability and the need for the animal, the assistive animal must be allowed except in few narrow circumstances.
If a landlord does allow an assistive animal as a reasonable accommodation, they cannot charge the tenant a pet deposit as the animal is not a pet. The animal is viewed as a tool to allow the tenant to reasonably enjoy the property. However, if after the tenant leaves and damage is caused to the unit because of the assistive animal, the landlord may charge the tenant for such damage and account for the damage in the security deposit accounting.