When Do You Have To Allow An Emotional Support Animal Into Your "No Pets" Apartments?
You own a “no pets” apartment complex. Potential tenants are beating down your door because they want to live there. Maybe they’re allergic to animals (pretty ordinary). Maybe they’re afraid of dogs (pretty common). Maybe they don’t like the waste or simply don’t like animals.
Then, a potential or existing tenant claims they need an emotional support animal and wants to force you to allow the tenant to have a cat or dog at the apartment complex.
Under what circumstance does your apartment have to allow a tenant to have an “emotional support animal”? This difficulty for an apartment owner arises pursuant to the federal Fair Housing Act (the “FHA”). To understand this issue, we first need to understand the three categories of animals.
First, there are “pets”. That’s exactly what you think it means, and your apartment complex can prohibit these animals.
The next two categories are “assistance animals”.
These are not pets. Assistance animals are animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. There are two types of assistance animals.
The first category is “service animals”. A service animal would be a seeing-eye dog. That’s not what we want to talk about here. We want to discuss the third category, which are animals that do work, perform tasks, provide assistance and/or provide therapeutic emotional support for individuals with disabilities. These are called “support animals”. Remember, they’re not pets.
If an animal doesn’t qualify as a service animal or support animal, then it is a pet for purposes of the FHA. And you can reject it.
The FHA requires “housing providers” to modify or make exceptions to policies governing animals when it may be necessary to permit persons with disabilities to utilize animals. An owner of an apartment complex is a “housing provider”. So, if you have a policy which says that no tenant may have a “pet” at the apartment, then it may be necessary to modify that policy to permit the tenant to have the animal. Again, you may think of it as a pet, but the FHA thinks of it as an animal.
HUD issued a “guidance document” in 2020 which creates a process for determining whether an animal is a support animal and whether or not your policies need to be modified to accommodate that need for a support animal. This modification of your policy (forced on you) is referred to in the guidance document as a “reasonable accommodation”. You probably don’t think it’s reasonable at all.
When faced with this issue, the first question to ask is: Has the tenant requested a “reasonable accommodation” for the use of an animal in connection with a physical or mental impairment or disability? If the answer that question is “no”, the owner can say no and nothing more is required. That seems obvious; if the tenant didn’t ask to have a support animal, you don’t have to reply. But that’s the analysis you have to go through. And remember, this request doesn’t have to be in writing. The tenant can make this request in person without some formal written application.
If the answer is “yes”, we have to proceed to the next step.
You’ll need to ask if the person has an observable disability or determine if you already have information giving you reason to believe that the person has a disability. Observable disabilities include blindness, deafness, mobility limitations and other types of impairments with observable symptoms. If the answer to this question is no, then you next need to ask whether the person requesting the accommodation has provided information that reasonably supports that the person seeking the accommodation has a disability. If the accommodation requester hasn’t provided this information, you can say no to this request.
If the requester has provided this information, then we move to the next step. Which is to ask whether the requester has provided information which reasonably supports that the animal provides assistance or emotional support with respect to the individual’s disability. Remember, there has to be a connection between the disability and the need for the support animal. Now, identifying the legitimacy of this connection is incredibly complicated and involves a lot more detail than this article can get into. But I’m happy to help you in this regard.
What kind of animal can be a support animal? It must be an animal commonly kept in households. You know, dogs, cats, rabbits, fish, etc. A tenant can’t ask for any animal to be an emotional support animal; it has to be an animal commonly kept in households. For instance, emotional support alligators won’t pass this test. If it’s not a common household animal, then it’s not a reasonable accommodation and you can say no.
What about when you have “competing” fair housing claims? For instance, one tenant wants to have an emotional support animal, but another tenant has pet allergies. These are competing claims. There was a recent court decision from Iowa which indicated that the first claim wins. That case concerned a no pets apartment where a woman moved to that apartment because of her pet allergy. A later tenant moved in and demanded to be allowed an emotional support dog. The court ruled that since the pet allergy sufferer was there first, the apartment owner didn’t have to allow the emotional support dog as a reasonable accommodation. This is only one court decision, and no rule has been definitively established yet.
But if you own a no pets building, and no tenant currently has an emotional support animal, you should survey your current tenants to determine if any of them are living there because of their aversion to animals. Specifically, if they suffer from animal allergies. And keep a written record of those survey results. For your new tenants, include questions on your tenant applications about whether that prospective tenant is considering your apartments because of pet allergies they suffer from. This information will be very helpful for you when telling another tenant that the request for an emotional support animal is not a reasonable accommodation.
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