Restrictions on Service and Companion Animals: Are They Allowed?

A resident made a reasonable accommodation request (“request”) for three companion dogs. She had a licensed therapist advocating her cause that the three dogs dramatically improved her mental conditions. The request was conditionally granted in this case. The granting of the request did not fully resolve the is¬sue because the request was conditionally granted. The property conditioned the request on the resident sign¬ing a Service Animal Addendum. The property imposed this condition because the property wanted recourse if the companion dogs injured someone, the resident did not clean up after them, or they disturbed other resi¬dents. Pursuant to the Com¬panion Animal Addendum we drafted, if the resident did not comply with these terms, the dogs would be subject to removal.

The resident would not agree to sign this adden¬dum until the property told her she either had to sign it or they would deny the accommodation. This real life factual scenario raises the following important questions. Generally, can you impose con¬ditions to granting a resident’s request for a reasonable accom¬modation? Can you condition a companion animal request on the resident signing a pet ad¬dendum? Can you condition a companion animal request on the resident signing a service animal agreement? What, if any, are the differences between pet addendums and service animal agreements? What, if any, restrictions can you place on service animals or on requests for service animals? Generally, these issues are not well understood. The industry tends to go overboard in one direction or the other. At one extreme are managers who make all pet rules apply to service animals. At the other extreme are those managers who don’t place any restrictions on service animals.

Under certain fac¬tual scenarios, condition¬ally granting a request can be unreasonable, and thus amount to discrimination. It all depends on the nature of the conditions, given the factual background of the request. Conditions flow¬ing from legitimate interests of the property are likely to withstand challenge. Conditions that have no legitimate or rational basis to any legitimate property interest are barriers. You may not create barriers to deny a resi¬dent’s request. If a condition is viewed as a barrier, the resident’s request for a reasonable accommodation has been denied. What is a legitimate condition and what is a barrier can be fuzzy. As with all requests, whether or not a condition is based upon a legitimate interest or is a barrier, is a highly specific factual inquiry and depends on the acts of each case.

Remember, service animals are not pets. A service animal is any animal that assists or benefits an individual with a disability, allowing such person to have equal opportunity to use and enjoy his or her dwelling. Remember, service animals include companion animals. The law makes no distinction between animals tradition¬ally regarded as true service animals, such as a seeing eye dog, and a compan¬ion animal that provides therapeutic benefit to someone with a mental disability. Because service animals are not pets, you can’t condition a resident’s service animal request on the resident signing a pet addendum. You should never require a resident who has asked a service animal to sign a pet addendum. Nor should you charge a resident who has asked for a service animal the standard pet-related charges that your com¬munity normally charges.

While you can’t require a disabled resident to execute a pet addendum, you can impose certain conditions or restrictions on the resident’s request for a service animal. Both case law and federal regulations support the conclusion that some conditions may be placed on requests for service animals. Just as with any condition put on any request, as discussed above, con¬ditions must be reasonably related to furthering a legiti¬mate interest of the property owner, such as the owner’s interest in providing a decent, safe, and sanitary living environment for existing and prospective residents and in protecting and preserving the physical condition of the property and the owner’s financial interest in it.

Requiring a resident to pick up after a service animal is a legitimate condition. Requiring the resident to pay for any damages caused by a service animal is a legitimate condition. Requiring that a service animal not disturb other residents is a legitimate condition. However, the Colorado Civil Rights Division (“CCRD”) recently expressed concern over this condition to us in connection with the 3 companion animal request. The CCRD’s concern centered around potential bogus complaints from other residents. Specifically, a non-disturbance agreement may allow a property to remove service animals under the pretext of neighbor com¬plaints. If neighbors complain about service animals, systematic procedures should be consistently followed to avoid these types of charges. You should always clearly communicate to the disabled resident the nature of the problem and that you are attempting to and willing to maintain a dialogue for the situation to be resolved. Such communication should always take place prior to the ser¬vice of any formal demand letters, and especially prior to the service of any eviction notices. In Fair Housing, intent is key. Reaching out in good faith (attempting to estab¬lish a dialogue) to solve the problem is strong circum¬stantial evidence that you lack any discriminatory intent. Plus, once you have fully considered the request, you do not want your next course of action to appear retaliatory in any way. In other words, you never want a situation that circumstantially suggests that you are now evicting or not renewing a resident because you granted the accom¬modation request but did not really want to. Thus, keep¬ing that open dialogue is critical.

A sampling of service animal agreements, avail¬able on the internet, shows that some managers are utiliz¬ing much more extensive agreements with numerous and significant conditions. Service animal agreements should be simple and to the point. They should not be a set up, meaning they should not impose unreasonable restric¬tions that the disabled resident will not be able to meet. Rather, they should cover only the most essential issues such as picking up waste, damages, and non-disturbance of other residents. These agreements should err on the side of being conservative. The more conditions the more likely the resident will assert that you are putting up bar¬riers and not legitimate conditions. Simple agreements are more likely to avoid charges that conditions are being imposed as barriers. If a resident refuses to sign your service animal agreement or challenges any provision as a barrier, you need to promptly respond to the resident. Your response should inform the resident of the legiti¬mate reasons for adopting the condition, that you are willing to discuss the issue further with the resident by maintaining a dialogue, and that you will always con¬sider any further information provided by the resident in evaluating whether the imposition of the condition is necessary. Your response should also ask the resident to indicate why the condition is illegitimate or is viewed as a barrier from the resident’s perspective.

You may impose some conditions on service ani¬mals. However, the law is clear. You may not apply cer¬tain pet-related rules to service animals. As stated above, you may not charge any standard pet-related charge or fee on a service animal, including pet fees, pet rent, or pet deposits. Ironically, pet-friendly properties are most likely to charge pet fees, rent, or deposits for service ani¬mals. Because the property already allows pets, service animal requests are mistakenly viewed as another run of the mill pet request to which all pet rules apply.

The ultra-conservative approach is not to place any conditions on granting requests for service animals. How¬ever, service animal agreements are desirable and necessary in our opinion. Service animals can cause problems or problems can result because the resident does not properly care for a service animal. In our case, the resident brought the 3 dogs in prior to even requesting a reasonable accom¬modation. While a dialogue has been maintained with this resident to satisfactorily resolve this particular request, the resident had consistently failed to pick up the dogs’ waste, which had been deposited in the common areas. If you have no service animal agreement, you have little or no recourse when service animal problems arise.
A copy of the Firm’s service animal agreement is available for download on our website (htspc.com- Docu¬ments, Lease, “Companion Animal Addendum”).

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