The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, whose discriminatory practices make housing unavailable to persons with disabilities. Recognizing that individuals with physical disabilities often require the services of an animal to assist them in their daily activities, the FHA has enacted rules to address this issue under Section 504b of the Rehabilitation Act of 1973 (the “Act:).
Under the Act, any tenant or prospective tenant with a disability, who requires the aid of an animal that provides disability-related assistance, may request that a housing provider waive a “no pets” policy as a reasonable accommodation, and may do so prior to or during his or her tenancy. A request for reasonable accommodation may be denied if providing the accommodation would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider's operations.
Once, however, a request is made, the accommodation must be considered where a person uses or seeks to use an assistive animal in housing where a landlord prohibits residents from having pets. Further, a landlord may not charge a pet fee for an assistive animal, as they are not considered pets under the law. It should be noted that under FHA guidelines, only dogs and miniature horses qualify as service animals. However, there are no limits on what qualifies as an assistance animal.
42 U.S.C § 12102(1)(A) defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” A tenant is required to meet the statutory definition of having a disability when requesting an accommodation. Therefore, any accommodation request should state that the tenant has a disability. A landlord may also request that an individual who identifies as having a disability produce reliable documentation of their disability and their need for an assistance animal. Documentation may be in the form of a letter from a service provider, a doctor, or a therapist that verifies the need for the support animal. A landlord may not ask for personal medical details, including details about the disability itself. If the documentation provided by the tenant proves insufficient, the landlord may require missing or additional information. If the tenant fails to provide the new information, a landlord may deny the accommodation request for a service animal.
Where a tenant requests an accommodation for an emotional support or assistive animal, a landlord may also request documentation to verify same. The animal may remain in the residence pending verification. This verification can be provided in the form of an Emotional Support Animal (ESA) letter. The ESA letter should come on a professional letterhead. It should include a contact information, a phone number, an email address, and a license number that is searchable for verification. Further, a landlord must not directly contact a tenant’s therapist as this is a violation of federal law. A landlord is not entitled to proof of the animals training or certification. Once the landlord has determined that all documentation provided by a tenant is proper, he may grant the tenant’s request.
Finally, a landlord may seek compensation from the tenant for any damage caused by the animal. In the event an assistive animal cause damage or attacks other residents, a landlord may also commence eviction proceedings.
It is imperative that landlords comply with the requirements of the law that pertain to people with disabilities. Here at Griffin Alexander, P.C., we have extensive experience advising landlords on their obligations under the law. Our attorney’s will work with your to ensure you have in place fail safe policies that protects your interest, and that of a disabled tenant.
Call (973) 366-1188 to get connected to an experienced attorney today.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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