Advocates and health professionals alike have long recognized the benefits that companion animals can play in assisting physically disabled individuals. Now, research has also shown that companion animals can provide emotional support to assist individuals with mental or emotional impairments. In this capacity, the dog becomes an assistive device much like a wheelchair or cane.
The problem arises when a landlord enforces a “no pets” policy and a tenant needs an assistance or support animal. However, the law will generally require that landlord to make an exception or a “reasonable accommodation” to allow that tenant with a disability to use and enjoy the dwelling. This includes not just physical disabilities, but mental and emotional disabilities. This law known as the Fair Housing Act makes it illegal for a landlord in both public and private housing to discriminate against a person in housing because a person has a physical or mental disability. Discrimination against a disabled person can include denial of service or assistance animals in housing.
The important thing to remember is that it is your burden to demonstrate that you have a disability and that an assistance animal will lessen the effects of the disability. This is so that the landlord who may have a legitimate reason for a no-pets policy can weed out those who need a companion animal for their disability from those who just want a pet for company. Anyone who isn’t really disabled cannot supply the necessary information to demonstrate a disability. The person with a disability does not need to supply private medical details about the disability, but must prove that he or she has a disability. And, most crucially, he or she must show that the companion animal helps person with the day-to-day functions of life. The animal in essence serves a therapeutic function.
But how do you approach a landlord to get him or her to make a reasonable accommodation? What are the steps a person must take to get a landlord to change his or her no-pets policy?
Here are some things you can do:
Try the nice approach. It is always best to try and negotiate a change in your rental terms with your landlord first. He or she may agree to provide you with a waiver to keep a small pet provided you agree to certain terms. You are essentially requesting a “reasonable accommodation” under federal law. Your accommodation is to keep your pet so that it can help you function with your emotional or mental disability. You do not need to disclose any private medical information, but explain that you have a disability for which a companion animal would provide necessary support. If you receive disability benefits, this may also support your argument that you are disabled. By going this route, you have the opportunity to keep an open and friendly relationship with someone you are apt to see and do business with on a long-term basis. That being said, be sure to get any change to your rental agreement in writing. Have both you and the landlord sign and date this amendment.
When the nice approach fails…Let’s say you’ve tried to explain your need for a companion animal to your landlord and he or she denies a change to the no-pets policy. What is the next step? This may sound elementary, but you need to be sure that you have a disability for which a companion animal can assist you. This assessment is relatively easy with a physical disability; a person who is in a wheelchair can use a dog to retrieve dropped items. A vision impaired individual can use a dog to guide him or her through the streets. A person with epilepsy can get an assistance animal to warn him or her when a seizure is about to strike. But what about emotional assistance? For what kind of impairments can an assistance animal be of help?
Do I have a disability? The Federal Housing Act defines a disability as (1) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Let’s start with the first part – a physical or mental impairment. It is interesting to note that the regulations for the FHA do not list every single impairment covered under the law. Instead, mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities are just a few examples listed under the regulations. The next step is to show a record of such an impairment. What does this mean? This issue turns on whether a person is generally regarded by others as having a disability. Generally speaking, if a person is being treated by a physician for an impairment or receives state benefits because he or she is disabled then there is a record of the impairment. What if a person is not being treated for an impairment? That is where the third part comes in. If a person is regarded by others as having an impairment, then no record is necessary. Some examples may make this clearer. If a person is born mentally retarded, then there may not be a recent and obtainable medical record of impairment. However, that person is likely regarded by others as having that impairment. Similarly, an autistic or agoraphobic person would likely be regarded by others as having those listed impairments. The easiest way to provide your landlord with this information is to get a letter from your doctor or therapist.
Does my dog help me function with my disability? This is critical: there must be a connection between the disability and the need for an emotional support animal. Remember this: you are asking for the landlord to make an exception for you to have an emotional support animal because this animal is necessary for you to use and enjoy your residence. You are not asking the landlord to change his or her no-pets policy because you need companionship or you are lonely. What usually is most convincing to landlords is when a doctor or therapist has verified the need for an emotional support animal. The Bazelon Center for Mental Health Law has a page with a sample letter to provide your doctor so that he or she can essentially “prescribe” an emotional support animal – see http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html. This reinforces your argument to the landlord that an assistance animal will have a therapeutic benefit for your disability. Remember that an emotional support animal is not just a companion or a pet. Courts view these cases on a fact-by-fact basis. What seems consistent is that it’s not the nature of the disability itself, but how well the tenant can prove that the animal helps a person deal with the symptoms of the disability.
You must still keep your pet under control. Once you have proven both your disability and that your assistance animal is a reasonable accommodation for that disability, it may be worthwhile to discuss with your landlord how you plan to keep your animal under control. This is important because a landlord can refuse a request if the animal would cause damage to other tenants’ property or pose a danger to others. Explain to your landlord how you plan to walk your dog with a leash, or how you will prevent your cat from going outside and digging up the landscaping. Again, it is important to maintain a good relationship with your landlord if possible.
It may be helpful to examine some examples from court cases of what situations demonstrate that an emotional assistance animal can be a reasonable accommodation and what situations do not:
- A tenant provided expert witness testimony from a psychiatrist that he received therapeutic benefits from keeping and caring for his cat, and that the cat therefore helped him to use and enjoy the dwelling by alleviating the manifestations of his mental illness. Some of the illnesses the tenant suffered from included panic disorder with agoraphobia, mixed personality disorder, and chronic anxiety. The tenant alleged that he accepted the cat into his home with the hope of alleviating his "intense feelings of loneliness, anxiety and depression, which are daily manifestations of his mental illness." The court held that the tenant established that he both had a disability and is "otherwise qualified" under law. Crossroads Apartments Assoc. v. LeBoo, 578 N.Y.S.2d 1004 (N.Y. City Ct. 1991).
- A tenant was physically disabled from symptoms of multiple sclerosis and took in her mother’s cat after her mother became seriously ill. After the housing authority learned of the tenant’s mother’s death, the housing authority again requested that the tenant remove the cat. In response, the tenant provided the housing authority with a letter from her physician stating that "there would be serious negative consequences for her health if she was compelled to remove the cat." The tenant filed suit alleging discrimination under the FHAA and the housing authority failed to renew her lease. The court held that the tenant failed to meet her burden of proving that the cat is necessary because of her handicap. The court reasoned that although the physician’s note stated that removal of the cat would result in "increased symptoms of depression, weakness, spasticity and fatigue," the note does not state that these symptoms can be treated only by keeping the cat in her apartment. The court stated there may be a more reasonable accommodation to lessen the effects of her disability, other than keeping the cat, and therefore denied the tenant’s motion for preliminary injunction. Nason v. Stone Hill Realty Ass’n, 1996 WL 1186942 (Mass. Super. Ct. 1996).
- The tenant in Whittier Terrace was a poor woman renting public housing who had an established psychiatric disability. The tenant kept a cat in her apartment despite a no-pets policy. The housing authority commenced an eviction proceeding because of the violation of the no-pets policy, and the tenant argued that, based on her emotional and psychological dependence on the cat, she was afforded protection from being evicted solely because of her inability to meet the no-pets provision, pursuant to Sec. 504. Based on expert testimony, the court held that the tenant was in fact mentally disabled and that there was a link between the tenant’s ability to function and the emotional support provided by the presence of the cat. The court further noted that reasonable accommodations are necessary under the law, but accommodations that cause undue financial or administrative burdens on the housing authority need not be provided. The court held that the tenant qualified under Sec. 504 and that the housing authority therefore could not evict the tenant for possessing a cat in violation of the no-pets policy. The court reasoned that the accommodation was reasonable because there were no noise or odor complaints from other tenants, and that the tenant was an ideal tenant except for her inability to comply with the no-pets provision. Whittier Terrace Assoc. v. Hampshire, 532 N.E.2d 712 (Mass. App. Ct. 1989).
If you’d like to read more about this issue, please see the Emotional Support Animals Topic Page.
Keep in mind that many landlords may still be unwilling to change their no-pet policy even after you’ve presented evidence of your disability and that your pet is a reasonable accommodation. When that occurs, you may have to take some sort of legal action. Here are some suggestions:
- File a complaint with HUD – the U.S. Department of Housing and Urban Development – See http://www.hud.gov/complaints/housediscrim.cfm for more information and to fill out an on-line complaint form.
- File a lawsuit in state or federal court. According to the U.S. Department of Justice website, a lawsuit based on housing discrimination must be filed within one year from the date of the incident. It is necessary to contact a licensed attorney in your state for more information on how to file a lawsuit.
- Contact your state’s department of civil rights to find out more information on how to file a housing discrimination complaint. For instance, the Michigan Department of Civil Rights has a section that describes how to file a complaint along with an on-line form - http://www.michigan.gov/mdcr/0,1607,7-138-42240_43561-153171--,00.html. It may be helpful to Google your state’s name and “department of civil rights” or the exact agency name if you know it.
Please understand that the above suggestions are not intended as legal advice. It is crucial to contact a licensed attorney in your state for more information on housing discrimination. With the help of a licensed attorney, you can learn more about your rights.
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