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Quick Summary of Emotional Support Animals and Housing Laws
Kate Brewer (2005)

Persons with disabilities have an equal right to housing as those without disabilities. It is illegal for a landlord to deny housing to a person because that person, or someone associated with that person, has a mental or physical disability.

Medical professionals have long recognized that animals can assist persons with physical disabilities, such as assisting blind or deaf persons. Recently, medical professionals have discovered the profound effects that animals can provide for persons with mental disabilities. Unfortunately, if a person rents housing, landlords are given the right to restrict a tenantís ability to keep an animal in his or her rental unit.

However, federal laws allow persons with certain special needs, such as the mentally disabled, to keep an animal in a rental unit despite a "no pets" provision. This is because disabled persons are entitled to reasonable accommodations under federal statutes. Courts have held that a waiver of a "no pets" provision is a reasonable accommodation for a mentally disabled person who needs an emotional support animal to lessen the effects of his or her disability. If a landlord fails to allow an emotional support animal in rental housing for a person who qualifies under the statutes, the landlord violates the statutes and could owe damages to the disabled tenant.

To qualify under the statutes, a person must have a qualifying disability, the landlord must know that the tenant has a disability, waiving a "no pets" policy must be necessary to allow the tenant an equal opportunity to use and enjoy the dwelling, and the landlord must refuse to waive the "no pets" policy.

Mental disabilities, such as mental retardation, mental illness, and special learning disabilities, qualify under the federal statutes. Also, the mental impairment must affect the personís ability to perform major life activities such as caring for oneís self, walking, or working.

The tenant must request a waiver of the "no pets" policy from the landlord, explaining that he or she has a mental disability and needs the emotional support animal to lessen the effects of the disability. A note from a physician to this effect is often used to inform the landlord of the disability and request the accommodation. Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link between the animal and the disability.

Even if a person qualifies for a reasonable accommodation under the statutes, a landlord does not have to waive a "no pets" policy if doing so would cause a great financial or administrative burden, if a "no pets" rule is a fundamental part of the housing program, or if the disabled person is not able to follow general rules of tenancy. However, to date, a landlord has not been able to refuse waiving a "no pets" policy to a qualifying mentally disabled person because of any of the above reasons.

In addition, if a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the tenant does not qualify under the statutes and the landlord does not have to allow the tenant in housing or waive a "no pets" policy.

 

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Overview of Emotional Support Animals and Housing Laws
Kate Brewer (2005)

Medical professionals have long recognized that animals can assist persons with physical disabilities including blind or deaf persons. Recently, medical professionals have discovered the profound effects that animals can provide for persons with mental and emotional disabilities. When provided with an emotional support animal, depressed patients show decreased depression and children with severe attention deficit hyperactivity disorder show an increased attention span.

Despite this, the answer to the above question depends on whether a person is receiving federally subsidized housing or  whether he or she has a documented disability to get a private landlord to waive a "no pets" policy.  Unfortunately, if a person rents housing, landlords are given the right to restrict a tenantís ability to keep an animal in his or her rental unit. However, federal statutes, including Section 504 of the Rehabilitation Act of 1973 ("Sec. 504") and the Federal Fair Housing Amendments Act of 1988 ("FHAA"), require that persons with disabilities have an equal right to housing as those without disabilities. It is illegal for a landlord to deny housing to a person with a disability because that person, or someone associated with that person, has a mental or physical disability. Under the statutes, disabled persons are also entitled to reasonable accommodations so that they can equally use and enjoy the dwelling. Courts have held that a waiver of a "no pets" provision is a reasonable accommodation for a mentally disabled person who needs an emotional support animal to lessen the effects of the disability. If a landlord fails to allow an emotional support animal in rental housing for a person who qualifies under the statutes, the landlord violates the statutes and could owe damages to the disabled tenant.

To qualify under both statutes, the tenant must establish that he or she has a qualifying disability. Mental disabilities, such as mental retardation, mental illness, and special learning disabilities, are qualifying disabilities under both statutes. Also, the mental impairment must affect the personís ability to perform major life activities such as caring for oneís self, walking, or working.

In addition, under Sec. 504, the tenant must be "otherwise qualified" to receive the benefit, the tenant must be denied the benefit solely because of the disability, and the program must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas. Lastly, only housing authorities that receive money from the federal government, such as public housing projects, are subject to Sec. 504 provisions.

Unlike Sec. 504, the FHAA applies to both public and private housing. Under the FHAA, in addition to establishing a qualifying disability, the tenant must also establish that the landlord knew of the tenantís disability, waiving the "no pets" policy was necessary to allow the tenant to equally use and enjoy the dwelling, and the landlord refused to waive the "no pets" policy. Also, the tenant must request a waiver of the "no pets" policy from the landlord, explaining that he or she has a mental disability and needs the emotional support animal to lessen the effects of the disability. A note from a physician to this effect is often used to inform the landlord of the disability and request the accommodation. Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link between the animal and the disability.

Under both statutes, a mentally disabled person must meet two standards when arguing a waiver of a "no pets" provision as a reasonable accommodation: (1) the accommodation must facilitate the disabled personís ability to function; and (2) the accommodation must pass a cost-benefit balancing test that takes both partiesí needs into account. The former can be established by evidence showing that the handicap requires the companionship of the animal, the disabled person has an emotional and psychological dependence on the animal, or that the animal lessens the effects of the disability by providing companionship. The supporting evidence often comes from a medical professional. The latter requires an analysis of the benefits to the tenant as compared to the burdens placed on the landlord. Generally, there are minimal burdens placed on a landlord if required to waive a "no pets" policy. Especially because the number of mentally disabled persons who can qualify for waiver of a "no pets" provision is small, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy because of extreme burdens. In addition, there must be no other reasonable alternatives to lessen the effects of the disability, other than the animal.

Courts have not restricted the types of species that qualify as reasonable accommodations. Examples of species that have been allowed as reasonable accommodations include dogs, birds, and cats. Also, courts have held that animals do not need to have professional training or be certified as an emotional support animal. Evidence establishing the nexus between the disability and the animal is sufficient.

Even if a person qualifies for a reasonable accommodation under the statutes, a landlord does not have to waive a "no pets" policy if doing so would cause a great financial or administrative burden, if a "no pets" rule is a fundamental part of the housing program, or if the disabled person is not able to follow general rules of tenancy. However, to date, a landlord has not been able to refuse waiving a "no pets" policy to a qualifying mentally disabled person because of any of the above reasons.

In addition, if a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the tenant does not qualify under the statutes and the landlord does not have to allow the tenant in housing or waive a "no pets" policy.

Given the known benefits of emotional support animals for persons with mental disabilities, it is important for the legal community to assist mentally disabled persons so that they are aware of the their rights and ensure that those rights are enforced.

 

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