Written By: Scott R. Thomas

As you may have heard, there was some kind of election on November 8th.  Some students at America’s premier colleges were so dismayed by what happened at the Electoral College that they plunged into a deep despair.  Snapping into action, the universities created “safe havens” where these leaders-of-tomorrow could gather to share their anguish.  To help the students cope, the safe havens were equipped with puppies.  Little dogs with floppy ears and wagging tails.  This is where the landlords in the audience need to stop laughing.

The Fair Housing Amendments Act of 1988 prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of a handicap.”  Laws in Ohio and Kentucky generally conform to the federal standards on this topic.  Discrimination can include a refusal to make reasonable accommodations in rules, policies, or practices that would enable that person to use and enjoy a dwelling.

Enter the “emotional support animal.”  An emotional support animal is an animal that alleviates one or more symptoms of a disabled person.  These are not “service animals” such as a guide dog for the visually impaired.  An emotional support animal needs no special training and need not possess any skills.  Sounds like my Westie.  The emotional support animal essentially helps the disabled person just by being there.  Unlike “service animals,” which must be a dog or miniature horse under the Americans with Disabilities Act, an emotional support animal can be any kind of critter.  That said, one might question the ability of a snake to offer emotional support and wellbeing.  (Don’t be sending me hate mail, you ophiophilists out there).

As a landlord, you may get a request for a waiver from your “no pet” policy from an existing tenant or as part of a new rental application.  To be entitled to that reasonable accommodation, the tenant must demonstrate that they suffer from a disability.  Generally speaking, a disability is a physical or mental impairment that substantially limits one or more of such person’s major life activities.  A “physical or mental impairment” includes the usual suspects such as visual, speech and hearing impairments.  Some landlords are surprised to learn that impairments can also include cancer, heart disease, diabetes, HIV+, and alcoholism.  “Major life activities” are typically those activities of central importance to daily life, e.g., seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, and reproducing.  The impairment must limit the major life activity to a “significant” or “large” degree.

Landlords are entitled to seek information from an allegedly disabled person to the extent necessary to establish the existence of the disability.  If the disability is readily apparent, you don’t get to ask about it.  Landlords are also entitled to ask for information that shows the relationship between the person’s disability and the need for the requested accommodation.  An accommodation is only “necessary” if there is a connection between the requested accommodation and the individual’s disability.  The disabled person must demonstrate a disability-related need for the animal.  You are entitled to information that shows how the reasonable accommodation will enhance a disabled tenant’s quality of life.

The kind of information provided depends on the circumstances.  In most cases, the tenant with a legitimate disability can provide a statement from a doctor.  On the other hand, a tenant might fully satisfy the obligation to demonstrate a disability by showing paperwork that they receive Supplemental Security Income or Social Security Disability Insurance benefits before reaching age 65, i.e., the federal government has made the disability determination for you and you don’t need any additional information.   This inquiry need not be highly intrusive.   The law balances the landlord’s need for information to evaluate the request with the tenant’s right to privacy.  Accordingly, it would likely be foolish to deny a request for a reasonable accommodation on the grounds the tenant didn’t release all their medical records.  Whatever information you get, keep it confidential.

The landlord must act promptly.  If you delay making a decision, that delay may be deemed a denial.  Likewise, not making a decision constitutes a denial.  There is no particular formula for making a request for a reasonable accommodation.  Don’t deny the request on some technicality.  The request doesn’t have to be in writing.  The tenant doesn’t have to fill out a particular form the landlord drew up.  The tenant doesn’t have to apply on Fridays between 3 and 5 o’clock.  The tenant doesn’t have to say the magic words “reasonable accommodation” or “Fair Housing Act.”  Denials on a technicality won’t hold water.

Theoretically, you can deny a requested accommodation if it constitutes an undue financial or administrative burden.  This is a tough sell in the context of an emotional support animal.  If you have rental property, letting a tenant have a dog is unlikely to put you in the red.  You can, however, deny a request for reasonable accommodation if the animal poses a danger to other tenants.  Just because your tenant, a rabid Bengals fan, is distraught over his team’s loss to the Giants, you don’t have to grant his request to keep a tiger cub in his apartment.

If the request for a reasonable accommodation is legitimate, be aware that you can’t require an additional “pet deposit” or impose any other charge or fee for granting the request.  The tenant, however, remains responsible for any damage caused.  The emotional support animal is not given cart blanche to tear up your unit.  You can’t require the animal to wear anything to identify it as an emotional support animal.  And be careful about what you say to others.  The tenant next door may come up to you saying “Mr. Smith has a dog.  Why can’t I have a cat?”  Do not disclose Mr. Smith’s disability to the other tenant.  Coach your employees to say something neutral: “Your lease says ‘no pets.’  If you have grounds for a request under the Fair Housing Act, submit it to me in writing.”

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to work with you.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

Hemmer DeFrank (1)