Comfort cat. Fair housing law question.

23 Replies

Hello,

I was wondering if any of you have had a situation like this arise. I own a college rental property with 6 students renting for a yearly lease. They came to us as a group of 6 and signed the lease without ever disclosing any information about a comfort cat. 

A few days ago we started receiving complaints from one of the tenants that another has a cat and will not listen to the complaints of the other roommates about having one in the house. Our lease states that the tenants are not allowed to have pets but we were made aware that she has a doctors note stating she needs this cat and that we do not have the ability to deny housing because of it. Additionally now one of the other tenants is complaining about a skin condition that she believes is developing from the cat (showed us a picture of a rash appearing on her face)

I guess my question is, do we have any course of action here in terms of removing the pet. They did not make us aware prior to signing the lease, however I understand she may need it for health reasons. The issue is that now it seems to be posing a health hazard to one of her fellow tenants and she does not have any consideration for this. Is it on the tenant who is developing the rash to get some sort of doctors opinion that the cat is to blame? Is it our job to resolve this or is it amongst the tenants at this point since the cat would be permitted under the fair housing law? Any information would be greatly appreciated.

Thanks,

Chris

Just have one tenant complain the cat scratched them to animal control , the cat will be gone soon after that , probably the tenant also 

Any lawyers here want to back me up on this argument:

She has a right to not be denied housing because of the cat, but she knew of her condition before signing the lease, and intentionally withheld the information. This caused the landlord to unwittingly put his another tenant's health at risk.

You do not have to allow an Emotional Support Animal if it causes undue financial or administrative burden to you or if it is a health hazard to other occupants of the same dwelling.  (A duplex would be tough to work this through, but a roommate scenario is exactly what this was geared toward).  

An allergic reaction severe enough to cause a facial rash is the very definition of a health hazard.  I'm glad you don't have anybody there with pet dander triggered asthma!

The cat's owner is also in violation of the lease because, while you cannot deny housing to a person who needs an Emotional Support Animal, it is most definitely within your rights to know it is in the house and she was not forthcoming with this information.  You can also request the following:

1.  Verification that the owner is a patient under a doctor's care

2.  Verification from the doctor that the patient requires emotional support from an animal

3.  Verification must be dated within the last year and be a letter on a doctor's stationary.

You are not allowed to ask what the medical condition is, nor are you allowed to ask what service the animal provides.

Note that MANY people confuse the above, which is per HUD guidelines and specific to housing with the ADA where the guidelines are much looser. I've had tenants fight me on this because they like to quote the ADA which is all about bringing animals into the public sphere like businesses and restaurants. The ADA marginally governs housing, but it is the HUD guidelines that are specific to housing and what need to be followed in this situation.

Also note that if you have fewer than four rentals, you are not required to abide by the guidelines.

I would contact the offending tenant and let them know that if they wish to stay in the property, the cat needs to go.  If they are unwilling to go, then you should probably just let them out of their lease with a 30 day notice with no penalties and return their deposit if there is otherwise no damage.

Good luck!

Thanks for the response. The tenant with the cat states that the condition has arisen after the lease was signed. Does this change anything? To me it seems like the health of her roommate should supercede the law allowing a comfort cat but would it then be my responsibility for removal of the tenant and cat or is it the tenant who is having the health condition within legal rights to handle the situation?

First, get documentation from the tenant that owns the cat. She must demonstrate that she is disabled. That mean that she has a severe mental condition, (bipolar disorder, major and chronic depression, severe eating disorder ect. ) she then has to demonstrate that the cat performs a service that helps her condition. It can not be generic.  Ask for the qualifications of the doctor, and see if she was evaluated on the DSM-V. Don't let her hand you a note from the doctor. 

Only dogs are considered to be service animals. in order for a cat to be it sounds like a bunch of BS in order to keep the cat. Unless she can demonstrate that she has a condition that severely limits a major aspect of her life AND the her can helps to fix that limitation. The cat is not covered under the ADA or FHA.


Lastly even if the cat is covered (probably not) you can still argue that the accommodation is not reasonable. I would argue that it jeopardized the health and safety of the other tenants. If the cat is causing a rash on a tenant than it is grounds for removal. 

First you must consult an attorney. Now if the pet owners medical condition worsened and she was prescribed the animal after she signs the lease, then you may not be able to remove her or the pet. In this case, allowing the tenant with allergic reactions to dissolve their lease and leave the premises within 30 days with full security deposit would be a better plan. Disclaimer: Now, if after speaking to a attorney you find out it's totally legal to remove the tenant and her animal, she could still (and propably out of spite) file an erroneous civil suit of discrimination against disabilities. I wish you the best of luck.
Originally posted by @Terry Miller :

Any lawyers here want to back me up on this argument:

She has a right to not be denied housing because of the cat, but she knew of her condition before signing the lease, and intentionally withheld the information. This caused the landlord to unwittingly put his another tenant's health at risk.

Don't know about the FHA but for the ADA you can say that you are not disabled when you get hired and then ask for reasonable accommodation for your disability once you begin work. The thought is that people would be worried of discrimination and will unlikely to disclose. Since you can't discriminate anyway when the disclosure happens doesn't factor in because theoretically it should be the same outcome. If she did disclose she should have still been able to rent the place.

I see what you are saying, but that doesn't take away from the fact that people are allergic to certain animals. If my cousin was among the other tenants, who would pay his co-pay for his emergency visit at a minimum, or his wrongful death lawsuit at the maximum? He is VERY allergic. Where do her rights stop and others start? EDIT: I saw the phrase in Ms. Weygant's post:  He has pet-dander triggered asthma.

She still would be allowed to rent, but the landlord should have had the option to seek out cat-tolerant, non-allergic co-tenants.

Extreme example. I own a cat grooming business. We only do cats. We interview you and hire you. You later disclose that you are asserting your ADA rights, and have a comfort dog you will bring to work every day. And he happens to not be well-behaved around cats. Are you allowed to bring chaos to my business?

I disagree that the tenant with the allergies should be made to leave.  Going without that person's rent AND having to limit future tenants to only those without cat allergies is an Undue Financial and Administrative Hardship to you.

Definitely consult with a lawyer for a definitive answer though.

@Amia Jackson , you are not correct in your statement.  It appears you have confused a service animal with a companion animal.  You do not have the right to find out the diagnosis of the person with the animal.  While it is may seem unfair to the landlord, it is the law.  I have had people try to force a move into an apartment with multiple cats and was able to fight it off, but you need to be very careful because the rules for each are different and getting it wrong could be costly.

1) Fair housing laws do not apply to you if you are renting your own property and are not a real estate agent or broker.

2) Emotional support animals are mainly BS. They are not service animals. A tenant who wants to assert a right to an emotional support animal must show certification from a mental health professional (not a general practitioner) that an ESA is needed. You do not have to accept their generic letter. You have a right to ask that the mental health professional fill out your own form.

3) The tenant did not inform you of this properly. Evict his [butt...wow, BP bleeps out a*s*s*....really?]. Tenants like this depend on landlords cowering in fear whenever they talk about fair housing laws, counting on you not really understanding the law. He/she did not follow proper procedure and does not have a properly documented ESA. Evict. 

Always give your tenants the impression that you have tons of money and a fleet of lawyers, and can make their life miserable. If they ever get the impression that you fear them, they'll make your life hell.

Originally posted by @Jerry W. :

@Amia Jackson, you are not correct in your statement.  It appears you have confused a service animal with a companion animal.  You do not have the right to find out the diagnosis of the person with the animal.  While it is may seem unfair to the landlord, it is the law.  I have had people try to force a move into an apartment with multiple cats and was able to fight it off, but you need to be very careful because the rules for each are different and getting it wrong could be costly.

Originally posted by @Amia Jackson:
Originally posted by @Jerry W.:

@Amia Jackson, you are not correct in your statement.  It appears you have confused a service animal with a companion animal.  You do not have the right to find out the diagnosis of the person with the animal.  While it is may seem unfair to the landlord, it is the law.  I have had people try to force a move into an apartment with multiple cats and was able to fight it off, but you need to be very careful because the rules for each are different and getting it wrong could be costly.

 If a person is asking for a reasonable accommodation for a disability, you are most certainly allowed to ask about the nature of the disability. Some states even allow you to ask for a diagnosis. This is especially true if the disability if not readily apparent which is almost always the case with mental and emotional disability.  The ADA calls is "Sufficient Medical Documentation" 

In a nutshell you can ask for

1. The qualifications of the doctor performing the diagnosis and how they come to thier conclusion. 

2. The nature, severity, and duration of the disability 

3. how this disability affects one or more major life areas. 

4 .How the accommodation would allow the disabled person to be helped in those major life areas. 

Accordingly if the accommodation is a ESA that person must provide evidence the have an emotional disability, the disability substantially limits them in one or more life areas, AND that the pets help them in that/those area. You also have the right that the person requesting accommodation complete medical testing if the nature of their disability is not apparent. The accepted for of testing for emotional and mental disability is the DSM-5. It's pretty much the only thing used to certify a mental or emotional disorder. 

There are several posts here with mis-information. In the recent update of the ADA (which has nothing to do with housing), dogs, trained to mitigate the disability of the handler are the only recognized service animals, with the rare exception of similarly trained miniature horses. https://www.ada.gov/service_animals_2010.htm

Under the ADA, ESAs are not  service animals, and are not permitted in public areas.

The Fair Housing Act has a broader definition of "assistance" animal. That ADA page also notes that  Some State and local laws also define service animal more broadly than the ADA does. Information about such laws can be obtained from the State attorney general’s office.  Unless that has changed, the broader definition is generally used. 

So then you need to go to the HUD site (or similar) https://www.animallaw.info/article/faqs-emotional-... and read that to see how it applies to your situation. Here's part of the information, and may not be all that applies: "An emotional support animal is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities. Unlike a service animal, an emotional support animal is not granted access to places of public accommodation. Under the federal Fair Housing Act (FHA), an emotional support animal is viewed as a "reasonable accommodation" in a housing unit that has a "no pets" rule for its residents."

see also ALL of the remaining sections. 

Check ALL local landlord/tenant laws, too.

THEN, after you've done your homework and have your questions written, seriously consider making an appointment with an attorney KNOWLEDGEABLE  regarding your state's housing laws and animals if you are still not sure. It's MUCH better to be safe than sorry.  If that isn't noted in his/her advertising, ASK SPECIFICALLY when you call for the appointment.

@Christopher Lawrence , I believe that everyone who has posted in this thread has good intentions, but please do not open yourself up to a potential lawsuit by asking this tenant about the nature of her illness. You absolutely do NOT have the right to ask. 

@Linda Weygant  has given you some great advice.

Thank you. Yes I did read that I am not allow to ask about the reason for accommodation nor how the cat would remedy that situation as long as the documentation of doctors note was provided.

I think our course of action at the moment will be to get the required documentation from both the individual with the cat showing she has doctors approval and the individual with the facial reaction to provide documentation that it is stemming from the cat. From there we can determine if we need to speak to an attorney or not.

Thanks,

Chris

@Christopher Lawrence her mental illness (that is what ESA treat) doesn't take precedence over the other tenants physical allergies or skin conditions. She failed to disclose it when signing the lease. She should have come to you and made a reasonable accommodation request for the cat, which she didn't do. You need to put her on notice in writing to remove the cat for the welfare of the other tenants in the unit. Either the cat goes or she goes. You are responsible for the health and welfare of the other tenants. Cat allergies are very real and there is NO reason the other tenants should be subjected to that because of her mental problems. 

The documentation is not the main issue. My thought would be the main issue is whose rights prevail if you have two people the one allergic to the cat and the one with the animal and they are roommates. I would think that if you have two allergic individuals undue hardship could be proven. ( I havent seen dorms forced to take emotional support animals but it could be coming). In any case since you have 3 girls already disagreeing in a college rental of 6 it might be a good idea to get a lawyers opinion, could get more disagreeable soon. Free range cat or just her room? Single lease or seperate leases? If it is a single lease the roomates may be able to force the cat out based on undue burden on them. Maybe send them to legal aid. Anyway keep us posted, interesting situation.
This is a great discussion on ESAs and Fair Housing. However, I bet in this situation (college aged young women) it is a roommate spat. I would recommend interviewing both the cat lady and the rash lady. Keep the less crazy/ entitled one. The more entitled one will continue to have roommate problems wherever she lives. Clearly the diversity of opinion on this subject will allow you to go with the tenant you deem the most rational.

Here's what the US Department of Justice has to say:

18. If a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of a requested accommodation?

A housing provider may not ordinarily inquire as to the nature and severity of an individual's disability (see Answer 16, above). However, in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act's definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person's disability and the need for the requested accommodation. Depending on the individual's circumstances, information verifying that the person meets the Act's definition of disability can usually be provided by the individual himself or herself (e.g., proof that an individual under 65 years of age receives Supplemental Security Income or Social Security Disability Insurance benefits (10)

or a credible statement by the individual). A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual's disability may also provide verification of a disability. In most cases, an individual's medical records or detailed information about the nature of a person's disability is not necessary for this inquiry.

Once a housing provider has established that a person meets the Act's definition of disability, the provider's request for documentation should seek only the information that is necessary to evaluate if the reasonable accommodation is needed because of a disability. Such information must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (e.g., a court-issued subpoena requiring disclosure).

https://www.justice.gov/crt/us-department-housing-and-urban-development

Tell her you'll be consulting your attorney to determine if the tenant with the cat allergy will need to move or if she will need to remove the cat.  

I might be tempted to mention that since she lives with 5 teenage tenants and several have already complained about her cat-- that perhaps she should be really, really careful to keep the cat confined to her own space so that the cat doesn't 'accidentally' get let out.

Originally posted by @Amia Jackson :
Originally posted by @Amia Jackson:
Originally posted by @Jerry W.:

@Amia Jackson, you are not correct in your statement.  It appears you have confused a service animal with a companion animal.  You do not have the right to find out the diagnosis of the person with the animal.  While it is may seem unfair to the landlord, it is the law.  I have had people try to force a move into an apartment with multiple cats and was able to fight it off, but you need to be very careful because the rules for each are different and getting it wrong could be costly.

 If a person is asking for a reasonable accommodation for a disability, you are most certainly allowed to ask about the nature of the disability. Some states even allow you to ask for a diagnosis. This is especially true if the disability if not readily apparent which is almost always the case with mental and emotional disability.  The ADA calls is "Sufficient Medical Documentation" 

In a nutshell you can ask for

1. The qualifications of the doctor performing the diagnosis and how they come to thier conclusion. 

2. The nature, severity, and duration of the disability 

3. how this disability affects one or more major life areas. 

4 .How the accommodation would allow the disabled person to be helped in those major life areas. 

Accordingly if the accommodation is a ESA that person must provide evidence the have an emotional disability, the disability substantially limits them in one or more life areas, AND that the pets help them in that/those area. You also have the right that the person requesting accommodation complete medical testing if the nature of their disability is not apparent. The accepted for of testing for emotional and mental disability is the DSM-5. It's pretty much the only thing used to certify a mental or emotional disorder. 

 This may be true in some states, not sure of any state that would allow this though. But this is illegal in many states and can carry a hefty fine. You cannot ask a veteran to show you a diagnosis of his PTSD disorder. Paperwork for the animal is about all you need. ESA and SA are very tricky. Like I said, some states few and far may allow this, but for many states across the nation that's a big red flag.

- I worked and trained with service animals and emotional support animals.

Originally posted by @Wil Reichard :

 This may be true in some states, not sure of any state that would allow this though. But this is illegal in many states and can carry a hefty fine. You cannot ask a veteran to show you a diagnosis of his PTSD disorder. Paperwork for the animal is about all you need. ESA and SA are very tricky. Like I said, some states few and far may allow this, but for many states across the nation that's a big red flag.

- I worked and trained with service animals and emotional support animals.

 I have 2 non obvious disabilities. There have been several times that I requested reasonable accommodations. I've ALWAYS had to provide some evidence. The first time I had to be officially tested and pay out my pocket.

You cannot ask someone about an accommodation for disability that is obvious. IE a blind person requesting a seeing eye dog. However if the blind person was asking an emotional support animal that you can ask for verification that demonstrate that they have a disability and that the accommodation would help them with that disability.

You have the right to "reliable documentation of a disability and their disability-related need for an assistance animal" according to HUD. That means you don't have to accept just anything. The verification must establish that the person had a DISABILITY. Not just an illness. It must rise to to level of a disability. Second the accommodation must match the disability. If a person who suffers from a mood disorder that substantially limits sleep wants a rooster to wake them up, that can be a reasonable accomadation. If that same person wants a rooster for their mild anxiety, that's not a reasonable accomadation.

http://hrc.vermont.gov/sites/hrc/files/publication...

Sometimes a person can have a mental illness that does not rise to the level of disability. Some common examples are depression and anxiety. Those diagnoses are not in themselves proof of a disability. The depression has to be major and substantially impact a persons life. I believe that it also can not be diagnosed within 6 months of a death of a loved one. There are a lot of factors that go into a diagnosis of a disability. Generally any mental/emotional/mood disorders must comply with the DSM-5.

- I am a person with a disability who has request reasonable accommodation in multiple states and in a federal program.  

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