NO Pets Policy Scenario- tenant has a doctors note to have a dog. Other tenant gives doctors note of severe pet alergies. who wins?

4 Replies

Question: 

With a no pets policy, tenant brings a doctors note stating she medically prescribed to have a service dog to counteract anxiety condition, she moved in without a pet and knew the policy beforehand. 

Other Tenant in the property has a past doctors description of their severe allergic reaction to pets( hence why they moved into a no pets policy building). 

who wins? Can you write in the lease a statement to address tenants trying to get around the no pets policy with doctors notes?

wow, tricky. Look forward to hearing the opinions of some of the lawyers here. I know you can't discriminate against service dogs. Not sure where the line between "emotional support animal" and "service dog" is, or even if it matters in this case

@Isaac Essex  I'm not a lawyer so please do not take this as legal advice - this is just my opinion.

If you have a no pet policy and you have advertised your building as such to the extent that people with severe allergic reactions to pets have moved in, I believe that you would have a duty to protect those tenants' interests. 

I want to say that medically prescribing a pet trumps your "no pet" policy, but wouldn't necessarily trump your logic for removing the tenant to protect the interest of your other tenants with allergies.

Of course you will have to tread carefully because you don't want to be pulled into a discrimination suit. 

Maybe @Christian Carson  can chime in. Not sure if this is his area of expertise but I know he's a real estate lawyer.

I'll preface this with saying I also am not a lawyer, but I do have a service dog for medical reasons. Legally speaking; 

A service animal means 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. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button.

Anxiety does not constitute a service animal. What your tenant is speaking of falls within the following;

Emotional support animals, comfort animals, and therapy dogs are not service animals under Title II and Title III of the ADA. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either. The work or tasks performed by a service animal must be directly related to the individual’s disability. It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

While Emotional Support Animals or Comfort Animals are often used as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and therefore are not covered by federal laws protecting the use of service animals. Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning.

I would also add one more point that is often misunderstood; with the millions of men & women who experienced combat in the US Military, hundreds of thousands return home with PTSD (Post Traumatic Stress Disorder). PTSD dogs used by veterans ARE considered service animals and are generally formally trained. Many receive the service animal prior to leaving active service, provided free by a variety of recognized service animal companies. 

Hope that helps a bit.

I'm not a lawyer, this is not legal advice, just opinion.  My understanding is that landlords are required to make "reasonable accommodations" regarding service animals (whether or not this constitutes a service animal, as per Gerard's post above, is a separate but also very important topic).  I think you may be able to argue that allowing a service dog is not "reasonable" for you as a landlord due to another tenant's disability, so you could justifiably deny the dog.  I recommend, however, that you contact a lawyer in your area to confirm what your legal options are there.

Join the Largest Real Estate Investing Community

Basic membership is free, forever.

By signing up, you indicate that you agree to the BiggerPockets Terms & Conditions.