For Landlords and Tenants: Assistance Animals, Fair Housing, and Service Dogs

September 15, 2021

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INFORMATION FOR BOTH TENANTS AND LANDLORDS IN REGARDS TO ASSISTANCE ANIMALS AND FAIR HOUSING AND TO CLARIFY WHAT THE LAW LAYS OUT FOR BOTH PARTIES…

 Let’s start with how people needing assistance animals were provided protection.  It starts with laws and Acts that created Fair Housing and Equal Opportunity.   For, in real estate, discrimination in housing at the Federal level is when an individual receives a different level of service because of:

-sex   (includes pregnancy, gender, sexual orientation and gender identity)

-race

-color

-religion  or creed

-national origin or ancestry

-familial status (having to do with all things related to family)

and/or

-disability (both physical and mental)

States, such as New York, have added protections to other groups besides these.

 

The Federal Fair Housing Act covers all types of housing, including public housing, with only the following exceptions:

-rental dwellings of 4 or fewer units where one unit is occupied by the owner;

-single family homes sold or rented by the owner without the use of a real estate professional; and

-housing owned by private clubs or religious organizations that restrict occupancy in housing units to their members.

Under the Fair Housing Act and Section 504, persons with disabilities may request a reasonable accommodation for assistance animals, which under these two laws includes emotional support animals (ESA’s).

Assistance animals are defined by the Act as “animals that work, assist, or perform tasks for the benefit of a person with a disability, including providing emotional support that alleviates or improves the symptoms or effects of a disability”.    So, “assistance animals” is a rather all encompassing term and can include service animals, emotional support animals, therapy animals and comfort animals.

An assistance animal is NOT considered a pet and is not in the same legal classification as pets.  And assistance animals are not limited to dogs and cats–they can be birds, rabbits and other animals.

Probably the most well-known assistance animal is the Service Dog.   A service dog is a specific type of assistance animal.    Service dogs, unlike assistance animals, are covered under the Americans with Disabilities Act (ADA), which defines them as:

Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the handler ́s disability.  

Originally, under Titles II and III of the ADA, only dogs could be service animals.   However, in 2010, a revision was made to allow miniature horses that have been individually trained to work or perform tasks for people with disabilities.  So, now service animals is limited to specially trained and skilled dogs and miniature horses.

LANDLORD CONSIDERATIONS

If you as a landlord are unsure if the animal is indeed a service animal, you are permitted, under the ADA, to ask (just) two questions:

  1.   Is the animal required because of a disability (assuming that is not obvious)?
  2.   What work or task has the dog/miniature horse been trained to perform?    (If that is not obvious)

If the animal(s) meets these criteria, the animal should be allowed to accompany the individual to all areas where anyone is normally permitted to go.   So, service animals–specially trained dogs and/or miniature horses, are permitted to all areas where anyone is normally permitted to go, which obviously means living accommodations.

But a service animal is not the same thing as an EMOTIONAL SUPPORT ANIMAL (ESA).

An EMOTIONAL SUPPORT ANIMAL (ESA) is a companion animal–dog or other common domestic animal, that a medical professional has determined provides benefit for an individual with a disability.    To be afforded protection under Federal law, a person must meet the federal definition of disability and must have a note from a doctor–not a family doctor, but here in NY State from a NY State licensed therapist, stating that the person has an emotional or mental disability and that the emotional support animal is necessary.

To receive legal protections in NY State, an ESA requires an ESA letter from a NY State licensed therapist.   ESA’s are exempt from no-pet housing restrictions.  However, they are not granted the same access to areas as service dogs (or miniature horses).    ESA’s are not considered service animals under the Americans with Disabilities Act.

Very important to NOTE:  The landlord may not discriminate or charge pet fees or deposits to the individual if the owner has an ESA letter from a physician or licensed therapist and the animal is therefore a certified Emotional Support Animal.   This is also true of service animals–they are not to be treated like pets and consequently no pet fee or pet deposit is to charged.    However, landlords can require a tenant to cover any related costs for repairs or damages caused by the animal or excessive wear and tear caused by the animal.

While the ADA makes it illegal to ask for documentation for a service dog or to ask questions about the service dog owner’s disability (for any place covered by the ADA), ESA’s don’t have ADA protections and non-exempt housing providers and landlords make request such documentation.

The NY State Human Rights Law requires that a landlord must permit disabled residents to keep emotional support animals as a reasonable accommodation.   Thus, disabled tenants are exempt from no-pet policies or policies which restrict the breed, weight, or size of pets.   However, there are exceptions.   The exemption does not apply if it would cause an undue hardship to the landlord.   In addition, the New York City Public Health Code prohibits certain categories of animals even as emotional support animals within the City of New York.   Emotional support animals that cause damage or disruption can also be excluded by a landlord.

I am a dog owner and dog lover, so I know it’s difficult to find rental housing with a pet.    My German Shepherd is my companion pet, not an ESA.     We have had nine flights together.   I know how difficult moving with a pet can be–Tabu, my German Shepherd, and I have lived in four countries together.   An amazing 42% of the households in the US have a pet–dog or cat.

So, this is relevant to so many of us.