Real Estate Law Blog

Not So Fast On Your “No Pets” Policy

Many landlords enforce a “no pets” policy in their rental units – and for good reason. Pets can be destructive, frighten other tenants, and increase landlords’ liability exposure. Such a policy, however, can be discriminatory to those with disabilities. While most landlords understand their obligation to make an exception for service animals, not all know what to do when a tenant requests to keep an emotional support animal (“ESA”) in their unit.

The Fair Housing Act prohibits discriminatory practices in connection with virtually all forms of private residential housing, whether for sale or rent. 42 U.S.C. 3603(a); see also KRS 344.360. It is important to note that the Act prohibits discrimination in a wide variety of actions, such as advertising, new design, or zoning. Discrimination under the Fair Housing Act also includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling. 42 U.S.C. §3604(f)(3)(B); see also KRS 344.360(11)(b). If a person is physically impaired (or, has a record of impairment or is regarded as having an impairment) and has a trained service dog to perform a major life task that he or she struggles to perform on their own, the Fair Housing Amendments Act of 1988 requires the landlord to make a reasonable accommodation to their policies.[1]

Similarly, the Fair Housing Act’s reasonable accommodation requirements also include ESAs under appropriate circumstances. The request for ESA’s, unlike requests for trained service dogs, is relatively new.[2] There are unique perils when dealing with ESAs and landlords should always proceed with caution if a request has been made. Whereas a tenant’s physical disabilities can be readily apparent, the same is not the case with emotional disabilities. Landlords can, and should, ask the person seeking the accommodation to provide documentation that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. While what qualifies as an acceptable source of such documentation has not been clearly established, documentation provided by physicians, psychiatrists, social workers or other mental health professionals has been deemed sufficient to warrant the allowance of an ESA as a reasonable accommodation.[3] However, existing case law makes clear that for a reasonable accommodation to be made, the tenant must demonstrate a relationship between his or her ability to function and the companionship of the animal.[4]

Importantly, according to the Americans with Disabilities Act, only a dog that is individually trained to do work or perform tasks for those with disabilities can be labeled a service dog. However, there are currently no similar provisions in the Americans with Disabilities Act, the Federal Housing Act, or in state regulations on what types of animals can serve as an ESA; a tenant could potentially rely on a snake or a pig as his or her ESA, and with proper documentation, could be legally entitled to keep the pet in his or her residential unit in accordance with the Fair Housing Act. Further, while service dogs must undergo specific training (which often makes them less problematic from a landlord’s perspective), there currently is no such requirement for ESAs.

Pet policies can curb some of the problems that landlords routinely encounter, but if applied uniformly without exception when a reasonable request has been made by a disabled tenant, it may lead to an even bigger problem: a discrimination claim. In addition to a general statement that the landlord will not discriminate against tenants or prospective tenants based on race, color, religion, sex, familial status, disability, or national origin, landlords should include language in their pet policies to reassure individuals with disabilities that an exception (i.e., a reasonable accommodation) will be made if appropriate under the Fair Housing Act and other applicable law.

[1] The Rehabilitation Act of 1973 and Title II of the ADA may also protect a tenant’s right to reasonable accommodation in some instances (i.e., if the housing is public or federally subsidized).

[2] ESAs are defined in the Fair Housing Act (1988) as those animals that belong to a person who is emotionally or psychologically disabled. It was not until a September 2010 Department of Justice ruling that the distinction was made between a “service animal” and ESA for purposes of the ADA.

[3] See Office of Fair Housing and Equal Employment Notice 2013-01 (April 25, 2013).

[4] See, e.g., Housing Authority of the City of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (Conn. Super. Ct. Jan. 14, 1997); Crossroads Apartments v. LeBoo, 578 N.Y.S.2d 1004 (City Court of Rochester, N.Y. 1991).

Brendan Yates joined the Lexington office of the firm as an associate in 2002. Brendan is a member of the firm’s Litigation Department, where he focuses his practice on construction and real estate litigation, workers’ compensation defense litigation, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky. He can be reached at byates@mcbrayerfirm.com or (859) 231-8780, ext. 1208.

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This article does not constitute legal advice.