Companion Animals, Part I: An Issue Now More Than Ever

Time flies in the multi-family industry.  Eight years have passed since we first wrote about Companion or Emotional Support Animals in November of 2005.  As demonstrated by the flood of situations from clients, companion animal issues have only increased over the last eight years.  Savvy tenants are now arriving with companion animal prescriptions in hand.  Because companion animal issues have exploded, this month and next month we will review the law, and procedures for handling companion animal requests.

Companion animals are also known as “companion pets”, or “therapeutic pets” or “emotional support pets”.  This is misleading.  The first pitfall to avoid is thinking of a companion animal as a pet.  If an animal truly is a “companion animal” or a “therapeutic animal” or an “emotional support animal” under fair housing laws, then the animal is not a pet. The animal should always be thought of in the same way as a true service animal.  Fair housing laws determine whether or not you must allow a Seeing Eye Dog.  Similarly, fair housing laws determine whether or not you must allow a companion animal. 

Requests for companion animals pose unique challenges, and confront onsite personnel with difficult questions.  The answers to these questions are not always obvious.  Companion animal questions are difficult for several reasons.  These reasons include who is making the requests, how the requests are being made, and how often the requests are being made.  On the surface, you frequently observe that tenants make requests for “companion animals” for apparently no other reason than to get around your community’s pet policies regarding pets, pet rent or fees, and restricted breeds.

Your conclusion is supported by numerous facts that almost always seem to exist when tenants make these types of requests.  The tenant making the request does not appear to be disabled, nor does the requested animal appear to be a “service animal”.  Often the tenant suffers emotionally to the extent that the tenant needs not just one, but multiple companion animals.  Many of the requests involve “exotic” animals such as snakes, fish, birds, and even pigs.  Finally, if you have breed restrictions, the request frequently involves an animal, such as a pit bull, that just happen to be on your restricted breed list.

Unlike companion animal scenarios, traditional service animal requests are straightforward.  A tenant who is obviously disabled and who obviously needs the service animal makes the request.  The classic example is a blind tenant who needs a Seeing Eye Dog.  If a tenant meets these criteria (obviously disabled, and obviously needs the service animal), you must allow the service animal.  Further, if you allow a traditional service animal, you may not charge pet rent, pet fees, pet charges, extra security deposits, etc.  The “if allowed, no charge rule” applies to all requests for reasonable accommodations involving animals.  Thus, if you allow a companion animal or companion animals, you may not charge traditional pet rent, pet fees, or pet deposits.  Remember, the animal is not a pet, but an animal, and is not being allowed at the community pursuant to the pet policies, but rather as an exception to them.

Companion animal scenarios are not so easily resolved.  The starting place for resolving companion animal situations is the HUD/DOJ Guidelines On Reasonable Accommodations (“the guidelines”).  HUD (Department of Housing and Urban Development) is the governmental department charged with enforcing federal fair housing laws.  The DOJ (Department of Justice) are HUD’s lawyers, and thus the DOJ has offered its “legal opinions” regarding the guidelines.  If you do not have a copy of the guidelines and would like one, the guidelines may be downloaded from the firm’s website in PDF format at thslawfirm.com.

Under the guidelines, if a tenant is not obviously disabled, and the need for the pet is not obvious, you may request information as to both disability and need.  How to handle companion animal requests (as all requests for reasonable accommodations) is very important, but not the subject of this article.  If you would like more information on this topic, attend one of the firm’s fair housing classes.  The firm regularly addresses handling requests for reasonable accommodation at its fair housing classes.  Given the number of requests for reasonable accommodations made by tenants, knowing how to properly handle them is an essential property management skill.

Because disability and need are usually not obvious, you will almost always request more information from the tenant in companion animal cases.  If the tenant is able to document both disability and need, you should grant the request for the companion animal.  Sounds pretty straightforward.  However, it is not.  What if the tenant’s medical documentation is from an acupuncturist?  What if the tenant’s neurologist says that the only animal that provides emotional support is a rottweiler that is on your restricted breed list?  Unfortunately, the courts are divided on what constitutes adequate documentation, evidence, or proof of need for a companion animal.  To illustrate this point, one only needs to look at one of the most common, but certainly most difficult companion animal request scenarios.

Clients are frequently confronted with this scenario.  The scenario goes something like this.  The tenant is not obviously disabled.  The tenant is seeking an exception from the community’s breed restrictions against rottweilers.  The tenant supposedly needs the dog for her “emotional well being”.  The tenant’s sole documentation is a note from her neurologist to that effect.  Under these circumstances, do you have to allow the animal?  The safest and quickest solution would be to allow the animal.  However, if you want to make your decision based on the law, courts have not set standards that results in a definitive answer, other than to say that each case must be decided on its own facts.

The preceding scenario frequently goes to the next level.  Not only is the requested dog on the community’s restricted breed list, but the dog is banned in the jurisdiction.  In the past, jurisdictional bans made handling these types of reasonable accommodation requests easy.  For example, if Aurora bans pit bulls, you do not have to allow a pit bull at your Aurora property as a reasonable accommodation.  The logic was that fair housing laws require you to accommodate tenants; they do not require you to break the law.  However, when HUD published its service animal memo in April of 2013, the risk of denying these requests by relying on the local ban increased. HUD asserted rank in the memo, and stated local jurisdictions were unfairly biased against certain breeds.  Thus, according to HUD, a local ban does not automatically justify a denial.  While a local ban can support denying a reasonable accommodation request for a restricted breed, it will not make the decision to deny bullet proof from challenge.

The bottom line is that companion animal requests have to be handled like any reasonable accommodation request.   Specifically, companion animal requests have to be handled based on the facts of your individual case.

We will continue this discussion, next month, by examining legal factors in more detail, and why documentation being provided by tenants may not automatically qualify them for a companion animal. To learn how courts rule on these issues, and for other answers, please be sure to read Part II in next month’s newsletter.

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