Posted almost 4 years ago

Can I Deny A Pit Bull As A Service Animal In Housing?

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As a landlord, there are many policies you have complete control over. For example, if you don’t want to rent to smokers, you can create a no-smoking policy. Smoking is not a protected class under Fair Housing laws, which means it is fair game for you to create a policy against.

Another common policy that landlords control is their pet policy. For some landlords, the fear of extra damage to the property and the liability of pets means they opt for a no-pet policy. In other cases, landlords create a pet policy that allows for pets but places breed restrictions or size restrictions on the animals.

These breed-restrictions are often applied against pit bulls and other “dangerous breeds” in particular. Due to the liability and the lack of insurance coverage, many landlords decide to place pit bulls on their “not accepted” list.

What happens though when someone has a pit bull that is a service animal. Does the breed restriction still hold? To find out more about this, first it is important to understand what a service animal is and how the rules and regulations of Fair Housing apply.

Service Animals, Assistance Animals, And Emotional Support Animals

While most landlords recognize the importance of a service animal that they can easily see gives aid to a tenant, some service animals appear to be less needed than they are, which can lead to confusion among landlords. In the case of service animals of any kind, including emotional support animals, you cannot charge pet fees, pet deposits or pet rent. Animals that fall under this classification are, in fact, not considered pets in the eyes of the law.

Service animals and assistance animals both fall under the Federal Housing Act and a landlord must provide a “reasonable accommodation” to allow animals who serve in either capacity to be in the home.

A disability that requires a service or assistance animal according to the FHA can be either a physical or mental impairment that significantly limits a person’s major life activities. Service animals are trained for specific tasks, such as a guide dog who helps someone with a vision impairment. An assistance animal, however, is an animal that provides emotional or physical benefits. Assistance animals do not require training for a specific task like service animals do.

Examples of assistance animals include:

  • A cat that alleviates a person’s depression
  • A dog that alleviates a person’s anxiety
  • An animal that helps reduce a person’s stress-induced pain

While you may not be able to “see” the assistance in the same way you might notice a guide dog helping someone with vision impairment, these animals are still providing assistance for someone with an impairment.

According to HUD: "Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support"

You can read more about assistance animals here.

Breed Restrictions Do NOT Apply

Whether or not you have breed restrictions at your property, they will not apply in the case of a service or assistance animal. This means that you cannot discriminate against a tenant solely because they have a pit bull as their service animal. Check out this pit bull who is trained to protect its owner’s head in the case of a seizure by cushioning her head with his own body:

https://gfycat.com/gifs/detail/wavyhelplesschameleon

ADA And HUD = Different Standards

It is important to note that often in the conversation landlords have surrounding emotional support animals, service animals, and assistance animals, ADA regulations and HUD regulations become mixed up. ADA has a different set of rules that apply to public places such as restaurants, stores, and other locations outside of the home. A major difference between ADA and HUD regulations comes down to what animals are considered service or assistance animals. For example, ADA will not allow for cats under their definition which is as follows:

“A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.”

HUD, however, regulates what goes on in the home and in response to ADA’s newest definition of service animals as only relating to dogs they created this memo:

“The DOJ’s new rules limit the definition of “service animal” in the ADA to include only dogs. The new rules also define “service animal” to exclude emotional support animals. This definition, however, does not apply to the FHAct or Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. “

Due to the difference in definitions, many landlords falsely believe they can apply ADA rules to their rental properties.

While many landlords find the FHA’s broader definition of service or assistance animals to be infuriating, it is important to note the discrepancy exists for a reason. It is fair to assume someone can avoid going to a restaurant to eat out but it is not fair to assume someone can live 24/7 without their assistance animal. FHA exists to protect the right of housing for many protected classes, as housing is considered a basic human right.

Asking For Documentation

When it comes to asking for documentation, you are allowed to do so if the person’s disability or disability related need is not readily apparent. That means if someone has an obvious disability or disability related need that their animal is assisting them with, it is illegal for you to ask for documentation. If, however, it is a situation, such as an animal who provides help to someone with depression, you can ask for documentation.

Acceptable documentation can be provided by a doctor, a PA, a psychologist, a social worker, a peer support group, a non-medical service agency or a reliable 3rd party that would be aware of the condition and attest to the need of the individual.

Avoiding Lawsuits

While some landlords adopt an attitude of being “above the law” in regards to service and assistance animal regulations, things can go south quickly if you ignore these rules. Lawsuits regarding service and assistance animals can wind up costing the landlord in question thousands upon thousands of dollars. Read more about how a federal jury returned a $37,000+ verdict against a landlord that charged a $1000 pet fee.

To prevent a lawsuit, make sure you read up on the actual laws as outlined by the Fair Housing Act. Check on local state and city regulations as well. And when in doubt, contact a lawyer to make sure you are covering all your bases.

For further reading, check out these helpful articles and resources:

http://www.humanesociety.org/animals/resources/tips/assistance-animals-tenants-rights.html

https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf

Disclaimer: This is not legal advice. This material has been prepared for informational purposes only. All users are advised to check all applicable local, state and federal laws and consult legal counsel should questions arise. 



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