claim of service dog after violating pet clause

60 Replies

Slightly high maintenance tenant brought cats into one of my SFHs. My property manager told them not allowed. They said they removed them. Months later a German Shepard is reported there by neighbors ( my best property managers actually). Tenants say they are willing to pay additional rent. First $30 more per month. We refused. next $50 per month. We refused and said no pets. Then $100 more per month. We refused. They said they would board them out. 

Couple weeks later dog is back. We said "no pets" and filed for eviction. They said their sister could no longer keep the dog.

We won the eviction case in front of Justice of the Peace here in Pennsylvania. 

Now they are appealing ( their right) and saying it is a "service dog" for their troubled son ( ADD or ADHD, but not claiming just a JD. 

How should I proceed?  Any suggestions or experiences beating this kind of lying about their "liberal" rights ?

Thanks in advance

bob

Hi Robert: Interesting situation. I am no lawyer, but here is my 2 cents'- and may be overvalued. If they didn't claim this was a service dog from the start, and you can document the back and forth negotiating the rent with no mention of this along the way, it seems to me a reasonable judge will see right through this charade. That said, I have gotten unpleasant surprises from JPs in the past- two to be exact. In both cases, I felt the JP acted as a negotiator rather than act on principle. Both cases were in front of the same JP, so I have no idea if this is commonplace or not.

I would love to see how this turns out. If decided on the basis of right on wrong, it appears you have a slam dunk. However, pulling out the emotional cards from the deck can be quite effective.

Make them produce documentation. I have a kid who is recovered from Autism. While I've heard of ASD kids having service dogs I've never heard of kids with ADD/ADHD having them.

All are man-made disorders by the way. Autism isn't mental its normally symptoms of underlying gut issues and/or other problems which is why it's curable.

When does their lease expire? If it's in the not too distant future, it might be worthwhile to take the extra $100 in rent, a hefty deposit, and then not renew. Does your insurance company allow German Shephards? If not, that's another issue.

Here are some related threads; in them you will find posts I made with links to an attorney from PA covering a case he is litigating:

http://www.biggerpockets.com/forums/52/topics/6489...

http://www.biggerpockets.com/forums/52/topics/7726...

http://www.biggerpockets.com/forums/52/topics/1273...

Now, that back and forth offering additional payment could be inferred as the tenant attempting to get a "reasonable accommodation". Not saying it definitively is ...

Here is more discussion on "reasonable accommodation":

http://www.biggerpockets.com/forums/52/topics/1094...

http://www.biggerpockets.com/forums/52/topics/1316...

http://www.biggerpockets.com/forums/52/topics/1330...

http://www.biggerpockets.com/forums/52/topics/1287...

http://www.biggerpockets.com/forums/61/topics/1158...

Your insurance company just might be the thing that still allows you to say no here. 

I believe in addition to a service dog being properly trained and certified, the family would need a recommendation/prescription from their doctor stating the need.  No mention of it prior during the eviction, and then trying add that argument now, probably won't be very convincing to the JP.

I'm a sucker for animals have have a huge soft spot in my heart for dogs, having 2 myself.  Is there a reason you won't allow dogs aside from the standard wear and tear? They offered $100, roughly $1200 annually, i dont think you'll see damage more than a few hundred at most.   Up here in NY, its about $50/month for pet fee, so $100 down in PA sounds like a lot.  But then again if they are high maintenance tenants, then better get them out anyway you can.

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If you said no pets then don't give in your word and you're lease will then be useless and powerless. If there is a precedent of you bending or breaking your own lease rules for 1 tenant then you have no leverage
after that changing your mind mid lease bad idea.
If you later want to rent to new tenants and allow pets that's different cause you'd have a pet clause and extra fee payment but into your lease.

You cannot demand documentation.  The family can easily claim they were embarrassed to reveal a disability so they tried to negotiate a pet even though they knew they did not have to pay more or give in to your illegal demands.  See how reasonable they look now and what a monster you are?

a service dog for attention disorder?  Is the dog supposed to keep the kid focused? 

Just to put things into a little perspective I am aware of two settlements within the last year involving service animals and accommodation for a ESA (emotional support animal).  The most recent was settled for $50,000 by one of my condo buildings.  It is upscale and allows pets.  However pets were banned from the lobby a while ago.  The 30+ year building manager hates animals.  A board member rented out a unit to someone with a service animal.  The manager had demanded personal information about the disability and the tenant gave private medical information just to expedite the process. (This sure came back to bite us).  The manager took a dislike to the tenant and the animal and started to harass the tenant when they came thru the lobby.  All the tenant had to do was go to the Fair Housing people and the tenant was reasonable enough to NOT  sue us but she was able to settle for the $50,000 and now our board has to educate all employees and notify all owners of proper service animal procedures.  Also, NOW all pets are allowed in the lobby! 

The other involved a case of an animal accommodation request in the workplace.  The employer was a department of a large west coast city.  They TOTALLY mishandled the procedure and eventually approached the employee and settled for over 6 figures!  The employee probably could have doubled or tripled that number if they had gone to court.

I'm with @Phil C.  on this.  Why would you care if a trained, well behaved animal was on your property?  Do you really want to jeopardize your property? 

Under federal law, you do not have to permit emotional support animals for anyone with a mental illness, only those who are disabled. This might vary with state laws, so check with your attorney.
In order to avoid abuse of the system, landlords are generally permitted to require a letter from the tenant's doctor explaining the tenant is disabled by mental illness and how the emotional support animal is expected to mitigate this disability. The doctor does not have to disclose the illness.

This is from the following article.

http://servicedogcentral.org/content/node/305

I don't believe the insurance card would work either, a service animal is to be treated as any other person not a German Shepard etc.

The original post says: "We won the eviction case in front of Justice of the Peace here in Pennsylvania. Now they are appealing ( their right) and saying it is a "service dog" for their troubled son... " Regarding "How should I proceed?" I don't think you have much choice. Either you or your attorney shows up at the appeal.

The only question I have is if the appeal allows a new defense (the newly discovered "service animal" as 'protected class' defense, not part of the first eviction case) vs. judgement based on lack of jurisdiction, improper venue, or such gross irregularity of procedure as to make the judgment void. @Steve Babiak   may have insight as to PA appeals... I personally only know one person with this kind of experience on the plaintiff side and he his in NC.

Not sure this is applicable... http://www.pacode.com/secure/data/246/chapter1000/chap1000toc.html since I don't live there.

@Robert M.  Please look at the links of previous BP discussions that @Steve Babiak  provided.  If you do not become familiar with disability law and reasonable accommodation, you will be at risk of stepping on a land mine.

As the former ADA/504 coordinator for a major medical center and a former advisory committee member for a disability services agency, I do have some knowledge in this arena.  However, I cannot and will not offer legal advice.

If I were in your situation, this is what I would do.

1.  Put your emotions and opinions about the matter on hold.  Focus only on facts.

2.  Document on a timeline all that has transpired regarding pets.  This includes your communications about your pet policy in your advertising, rental agreement, notices.  This also includes all actions about the animals that were brought to the property.  Who, what, when, where, why, how.  Who brought the animals to the property, what animals (describe each one), where did they come from, why did the tenant say they did this, how did you address the issue?

3.  Document on a timeline every thing that has occurred since the beginning of the tenancy related to any mention of anyone residing in the home having a qualified disability and/or anyone requesting an accommodation for a disability.  Do you have a service animal policy? ESA animal policy? Did the tenant at any point in time request an accommodation for a disability?  

4.  To obtain a reasonable accommodation, there must be a request made by the tenant for such.  Then you as the landlord can and should require appropriate documentation of their request, in writing.  You can not ask probing questions or details about the disability, however you can ask for proof that they have a qualified disability and even a little about the nature of the disability.  This can be in the form of documentation from a qualified professional.  Also, you can and should request documentation that this particular animal provides a necessary service related to the disability.

5.  There may be room for negotiation regarding the type of accommodation.  As well as perimeters about the accommodation.  There are federal disability laws and state disability laws.  Since she is appealing the court decision, just be sure to have at the ready all of your documentation and the services of a qualified professional that can provide you with legal advice appropriate for your jurisdiction.  Do not do anything that could be considered retaliation.

6.  If you do not have one already, establish a policy for handling requests for accommodations for people with disabilities.  Our policy states that we will gladly make reasonable accommodations for people with qualified disabilities upon request.  We also have a procedure we follow for collecting the appropriate documentation, negotiating, and making accommodations.  In 19 years of owning and managing residential rental properties (15 units), only one tenant who requested an accommodation for a service or ESA animal actually had a qualified disability for which the animal was necessary.

7.  Again, read the other BP threads and get legal advice as warranted.  Also, fear not.  The more you know, the more you will see that this kind of situation is manageable.  You have every right not to allow animals in or on your property if they do not meet the criteria for being a reasonable accommodation in accordance with federal and state laws pertaining to disability rights.

Originally posted by @Dick Rosen:

I don't believe the insurance card would work either, a service animal is to be treated as any other person not a German Shepard etc.

This comes down to the meaning of "reasonable". If the landlord's insurance company prohibits specific breeds, it is not reasonable to expect the landlord to be uninsured. So let's say another company will insure that specific breed but at a higher premium for that policy; is making the landlord pay more for that coverage reasonable?

That is the way the insurance could decline to cover a German shepherd. And if the OP has Erie Insurance (he is located in Erie PA after all) then I know that breed is one of their prohibited breeds. 

I think there should be a clear distinction between service animal and ESA for federal law.  I am 99.9% sure there is never a need for an accomodation for a service animal.  Accommodations are only for ESA's and even there state law can circumvent this.

Originally posted by @Bob Bowling:

You cannot demand documentation.  The family can easily claim they were embarrassed to reveal a disability so they tried to negotiate a pet even though they knew they did not have to pay more or give in to your illegal demands.  See how reasonable they look now and what a monster you are?

 This is not true.  You certainly can require documentation.

Originally posted by @Marcia Maynard:
Originally posted by @Bob Bowling:

You cannot demand documentation.  The family can easily claim they were embarrassed to reveal a disability so they tried to negotiate a pet even though they knew they did not have to pay more or give in to your illegal demands.  See how reasonable they look now and what a monster you are?

 This is not true.  You certainly can require documentation.

What documentation can you require for a service animal?

Originally posted by @Bob Bowling:

I think there should be a clear distinction between service animal and ESA for federal law.  I am 99.9% sure there is never a need for an accomodation for a service animal.  Accommodations are only for ESA's and even there state law can circumvent this.

Reasonable accommodations are often made to allow service animals.  There are people with qualified disabilities who absolutely need them.  I don't understand why you would think otherwise.

I agree with you about the need for clear distinctions.  Unfortunately, the disability rights laws are not always clearly understood upon first reading.  In my former job I would read in depth not only the Federal Register, but any interpretation of the laws (federal and state) that I could.  Working as closely with the disability community as I did, I learned how to discern legitimate requests from those that were bogus.  However, I used the same process for everyone who requested an accommodation.  Some accommodations were granted and some were not.

Most of the people who try to get an animal into one of my rental units under false pretenses back off quickly after I let them know the process that we require.  We play by the rule book and most of the fakers don't know the rule book.  Same applies to using landlord-tenant law to your advantage.  Know the laws better than your tenants do.

@Marcia Maynard   I tried to research a little more.  My experience has been in CA and Hawaii.  My basic understanding is that you have to make an accommodation request only for an ESA.  If you have a service animal in both states I've been led to believe you can ONLY ask the two questions below and do not have to ask for an accommodation.  In both states there were settlements for NOT complying with those questions.  Maybe MORE could be required but the attorneys seemed confident to stop with the two questions.  The web site refers to the fair housing act but I can't find a definitive answer to when it would be appropriate to demand any further documentation.  Seems like a slippery slope.

Asking questions

To determine if an animal is a service animal, a public entity or a private business may ask two questions:

  • Is this animal required because of a disability?
  • What work or task has this animal been trained to perform?
  • http://adata.org/factsheet/service-animals

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