Federal statutes provide protection for disabled persons against housing discrimination. These statutes and corresponding case law hold that an emotional support animal is a reasonable accommodation for a mentally disabled person, and if a landlord fails to waive a no pets policy to allow the emotional support animal in rental housing, the landlord is in violation of federal laws.
For decades, society has recognized that assistive animals can provide certain benefits for persons with physical disabilities. For example, we accept that canines can lessen the effects of a disability by providing "eyes" for the blind or "ears" for the deaf.
In recent years, medical professionals researching human-animal relationships have discovered profound benefits that animals can also provide for persons with mental disabilities. According to the American Psychiatric Association, psychiatrists and psychotherapists now use animals to treat a patient’s mental illness when other remedies have failed. For example, when provided with an emotional support animal, depressed patients show an increased socialization and decreased depression, children with severe attention deficit hyperactivity disorder and conduct disorder show decreased aggressive behavior and improved attention, and patients with autism or developmental disabilities have an increased socialization and attention span. As one psychiatrist aptly stated: "Psychiatry has become biologically based, less attuned to social environment. This is unfortunate because there is so much evidence that social support is a critical variable in the recovery from many serious biological disorders including psychiatric illnesses." [ FN1 ]
Since we now know that animals provide a non-chemical therapy for many mentally disabled persons, we may wonder why such a simple solution is not being used more often? For mentally disabled persons renting housing, the answer often lies in the fact that under most states laws landlords have broad power to prohibit a tenant from keeping an animal in the rental unit. The landlord enforces this right by including a "no pets" provision in the rental lease, or disclosing a no pets policy as part of the general rules of tenancy.
Despite state laws, a landlord’s power to restrict animals in rental units is not limitless. There are exceptions, created by federal and state laws, for tenants with special needs. Unfortunately, mentally disabled persons renting housing often are not aware of these exceptions, and assume they have to remove an animal if the landlord threatens an eviction proceeding for failure to comply with a no pets provision. Given the known benefits that emotional support animals provide for persons with mental disabilities, it is important for the legal community to facilitate the mentally disabled’s understanding of their rights, and ensure that their rights are enforced.
Even though federal law creates an exception to the enforcement of no pets policies for this narrow group of disabled persons, landlords sometimes resist waiving the no pets policy. Landlords suggest that such exceptions will cause a "flood gate" of persons claiming mental illnesses and the need for pets. They allege this will in turn lower the value of the property by creating odors and noises that deter other tenants from renting.[ FN2 ] Often, these fears are unwarranted, because the number of mentally disabled persons who can qualify for an exception to the no pets policy is relatively small. As Justice Anderson stated in Majors v. Housing Authority of the County of DeKalb Georgia , it is a "reasonable inference that the [Housing] Authority could easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires the companionship" of an animal. [ FN3 ]
The following discussion focuses exclusively on a landlord’s requirement to allow an emotional support animal in rental housing as a reasonable accommodation, under federal law, by waiving a no pets policy. [ FN4 ] This discussion assumes that the no pets restriction is otherwise valid, and that the tenant is fully capable of keeping the pet without violating any laws. The terms "handicap" and "disability" are used interchangeably, "tenant" can also include "potential tenant," and the term "landlord" is synonymous with "housing authority."
II. FEDERAL PROTECTION
Federal protection for mentally disabled persons against housing discrimination is created under two federal statutes: (1) Section 504 of the Rehabilitation Act of 1973 ("Sec. 504"); and (2) the Federal Fair Housing Amendments Act of 1988 ("FHAA"). These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against disabled persons in housing, and if a reasonable accommodation will enable a disabled person to equally enjoy and use the rental unit, the landlord must provide the accommodation. [ FN5 ] It should be noted that the statutes differ with respect to the types of housing authorities subject to the provisions of each statute. Whereas only housing authorities receiving federal financial assistance are subject to Sec. 504, both public and private housing authorities are subject to the provisions of the FHAA.
Although neither statute expressly states what can and cannot be a reasonable accommodation, the United States Court of Appeals for the Fifth Circuit held in 1981 that a waiver of a no pets policy is a reasonable accommodation under these statutes. [ FN6 ] If a landlord enforces a no pets rule against a mentally disabled person who meets the requirements of the statutes, the housing authority deprives the handicap person of the benefit of the housing program, and is in violation of federal laws. [ FN7 ] As noted immediately below, it has taken several decades for this area of law to develop to the point it is at today, and like most areas of law, it continues to develop.
When Congress enacted Sec. 504 in 1973, it sent a strong message to America that the nation would no longer tolerate discrimination against disabled persons. [ FN8 ] This broad statute did not focus on any particular area of society in which disabled persons were discriminated against, but instead made broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal. Although the statute was a victory for persons with disabilities, it was not until 1978, when Congress authorized the head of each federal agency to write and implement regulations, that the statute had procedures in place to actually protect persons with disabilities.
Even after the 1978 amendment, it was difficult for practitioners to bring a claim of housing discrimination under Sec. 504. Congress intended the statute to provide broad protection and, therefore, the express language of Sec. 504 does not provide insight into application of the statute to the area of housing discrimination. Congress sought to provide guidance to courts and practitioners through the regulations implemented by federal agencies. The Department of Housing and Urban Development ("HUD") was the federal agency assigned the responsibility of creating regulations to "fill in the gaps" of the statute in the area of housing discrimination. However, HUD failed to do so until 1988. This left both courts and practitioners wondering what persons have a valid claim of housing discrimination under Sec. 504.
Prior to the creation of the HUD regulations, courts were forced to draw on the application of Sec. 504 from other areas, such as employment discrimination. [ FN9 ] Ironically, it was the foundational cases in the area of housing discrimination that provided guidance to HUD when the department finally drafted its regulations. As a result of this lack of clarity, Sec. 504 was rarely used to protect disabled persons against housing discrimination during the first two decades of its enactment.
In contrast, the Federal Fair Housing Act ("FHA"), enacted in 1968 as part of the Civil Rights Legislation to end racial discrimination, applied specifically to the area of housing discrimination. In 1988, the Federal Fair Housing Act Amendments ("FHAA") was passed, expanding the scope of the FHA to protect handicapped persons against housing discrimination. [ FN10 ] Since the express language of the statute described its application only in the context of housing discrimination, this federal statute was often easier for practitioners to apply than Sec. 504. HUD implemented regulations for the FHA shortly after its enactment, although practitioners were not as dependent on these regulations as they were with Sec. 504, since both the express language of the FHA, and case law brought under Sec. 504, provided guidance to practitioners and the courts.
Despite their varied beginnings, nearly three decades after Congress first declared its commitment to end discrimination against disabled persons, the statutes continue to provide protection for disabled persons. Courts are continually finding new ways to apply the statutes to ensure that disabled persons are afforded an equal opportunity to obtain housing. This is exemplified in the present context of a mentally disabled person being protected against housing discrimination because of the need for an emotional support animal, even if the housing authority has a no pets policy.
B. SUMMARY OF THE STATUTES AND APPLICATION TO "NO PETS" POLICY
Although the analysis under both statutes is very similar, there are some minor differences. The relevant portion of Sec. 504 states:
No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance... [ FN11 ]
In the context of housing discrimination, this statute creates the rule that public housing authorities cannot deny housing to a disabled person solely because of his or her disability, and that if a reasonable accommodation can be made to make housing available to a disabled person, the landlord is required to make the accommodation. [ FN12 ] Even though the statute does not expressly use the phrase "reasonable accommodation," it has been read into the statute by case law and HUD regulations interpreting the statute. [ FN13 ]
To establish a prima facie case of housing discrimination under Sec. 504, a tenant must establish four elements: (1) tenant is an individual with a disability; (2) tenant is "otherwise qualified" to receive the benefit; (3) tenant was denied the benefit of the program solely by reason of his or her disability; and (4) the program receives federal financial assistance. [ FN14 ]
The first element is described in greater in Section III below. The second element, that the tenant be "otherwise qualified" to receive the benefits, has been interpreted by courts to mean that the tenant is able to meet all of the requirements of tenancy "in spite of" the handicap. Whether a tenant is "otherwise qualified" is considered in the context of whether a reasonable accommodation would allow the tenant to be "otherwise qualified," as discussed in greater detail below in Section IV.B. [ FN15 ]
The third element, that the disabled person is denied the benefit of the program solely by reason of his or her disability, is met if the tenant was denied housing solely because of a violation of the no pets policy. For example, in Whittier Terrace v. Hampshire , the only reason the landlord sought to evict the tenant was because of her possessing a cat in the rental unit, in violation of the no pets rule. The court noted that there was no other reason, for example, no noise, odor, or complaints from other tenants, and that the tenant was therefore denied housing only because of the no pets violation. [ FN16 ]
The fourth element, that the program receive federal financial assistance, is met in the housing context when the housing authority receives federal funding. Therefore, housing units that receive federal subsidies, federal housing projects, or other federal public housing authorities are subject to Sec. 504 requirements. Consequently, private housing authorities are not subject to Sec. 504 requirements. [ FN17 ]
The express language of the FHAA is quite different than Sec. 504, since it applies only in the area of housing discrimination. The relevant portion of the FHAA states that it is unlawful:
to discriminate in the sale or rental...of a dwelling to any buyer or renter because of a handicap of that buyer or renter, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or any person associated with that buyer or renter.
Further, it is discrimination for any person to:
refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas. [ FN18 ]
Substantially similar to the rule under Sec. 504, the general rule under the FHAA is that it is unlawful to refuse to make a reasonable accommodation in rules, policies, practices or services, if such accommodation would afford a handicapped person an equal opportunity to use and enjoy a dwelling. [ FN19 ]
To establish a prima facie case of housing discrimination under the FHAA, the tenant must establish four elements: (1) tenant suffers from a handicap; (2) landlord knew of the handicap or should reasonably be expected to know of it; (3) accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the dwelling; and (4) landlord refused to make such accommodation. [ FN20 ]
The first step of the analysis, that the tenant suffers from a handicap, is also a requirement under Sec. 504. It is important for the practitioner to note that this element is viewed by the courts as a threshold requirement. If the tenant cannot prove a qualifying disability, the court’s analysis ends there. This element is described in greater detail in Section III below. The third element requires that waiving a no pets policy be necessary to afford the mentally disabled person an equal opportunity to use and enjoy the dwelling. This element has undergone much litigation and is described further in Section IV below.
The second element, that the landlord knew of the handicap or should have known of it, places an affirmative burden on the tenant to request the reasonable accommodation, namely, a waiver of a no pets policy. A tenant can meet this burden by providing a letter from his or her physician or mental health professional stating: (1) the tenant has a mental disability; (2) explaining how the animal is needed to lessen the effects of the disability; and (3) requesting that the animal be allowed in the rental unit as a reasonable accommodate for the mental disability. [ FN21 ]
The fourth element, that the landlord refused to make the accommodation, is met if the landlord refused to waive the no pets policy for either a potential tenant or a current tenant, who meets the requirements of the statute. As stated above, the court will not delve into an analysis of any of the elements of Sec. 504 or the FHAA unless the tenant can first establish a qualifying disability.
III. TENANT MUST HAVE A DISABILITY
A. DEFINITION OF HANDICAP
Both Sec. 504 and the FHAA require that the tenant have a qualifying disability. The definition under each statute is substantially the same, whereby a disability includes: (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. [ FN22 ]
The HUD regulations expand upon the definition of handicap. For example, a mental disorder can include "mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities." The definition is flexible and the regulations expressly state the scope of "handicap" is not limited to those listed. [ FN23]
"Major life activities" include functions such as "caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." A person who qualifies under this provision is in fact handicapped. [ FN24 ]
"Has a record of such an impairment" means having a history of, or being missclassified as having, a mental or physical impairment, that limits one or more major life activities. This definition does not turn on whether the person is indeed handicapped, but rather on how others view the capabilities of the person. Therefore, if a person has fully recovered from a handicapping condition, but other people still "classify" the person as if he or she is handicapped, the recovered person is afforded protection under the statutes. [ FN25 ]
"Regarding as having an impairment" also does not turn on whether the person is indeed handicapped, but rather on how others perceive the person. A person qualifying under this provision: (1) has a physical or mental impairment that does not substantially limit one or more major life activities but that is treated by another person as constituting such a limitation; (2) has a physical or mental impairment that substantially limits one or more major life activities only as a result of the attitudes of others towards such impairment; or (3) has no physical or mental impairments but is treated by another person as having an impairment that substantially limits the person’s major life activities. This type of discrimination is similar to race discrimination in that the person is discriminated against because of a perceived disability, although the person is not, and never has been, disabled. [ FN26 ]
By enacting such broad definitions of "handicap," Congress clearly sought to protect persons, disabled or not, against the effects of discrimination based on an actual or perceived handicap. These definitions, however, were developed to protect persons against many forms of discrimination in many areas beyond housing discrimination. In the present context of discrimination based on a failure to waive a no pets policy as a reasonable accommodation, courts have made it clear that the tenant must in fact have a disability that substantially limits one or more major life activities.
B. APPLICATION TO EMOTIONAL SUPPORT ANIMALS AS REASONABLE ACCOMMODATIONS IN HOUSING
A tenant claiming that his or her landlord violated Sec. 504 or the FHAA for failure to waive a no pets policy as a reasonable accommodation for the tenant’s mental disability must in fact be handicapped. This is because the form of discrimination claimed is a failure to make a reasonable accommodation. A mentally disabled person is entitled to a reasonable accommodation only if the accommodation facilitates the disabled person’s ability to function, by lessening the effects of the disability. [ FN27 ] Clearly, a tenant can prove that the emotional support animal lessens the effects of the tenant’s disability only if the tenant is indeed handicapped.
An example of a case where the tenant failed to meet this threshold requirement is London v. Tarrant , where a mother renting housing alleged that her son was "mentally challenged," that the alleged disability required the companionship of a dog, and that the dog therefore was allowed in the rental unit pursuant to Sec. 504. The court rejected the tenant’s allegations that her son had a qualifying mental disability, reasoning that the son received high marks in school prior to commencing the eviction proceedings. Although the son’s grades deteriorated after the prospect of losing his dog, the court stated this evidence does not prove that the son had a mental disability. No other evidence was furnished to support the child’s alleged mental disability, and the court held that without such evidence, the child is not entitled to a reasonable accommodation under Sec. 504. [ FN28 ]
If a tenant does meet the burden of proving a qualifying disability, the real crux of the argument – what is a "reasonable accommodation" – begins.
IV. WHAT IS A REASONABLE ACCOMMODATION?
Courts have continued to reject bright-line rules defining what is, or is not, a reasonable accommodation. Courts have stated that a determination of which accommodations are reasonable requires a flexible standard, based on the needs of the particular tenant. [ FN29 ] A simple example of a pet allowed in housing as a reasonable accommodation for a physically disabled person is set forth in the HUD regulations. According to HUD, if a blind person needs the assistance of a seeing eye dog, and therefore requires that the dog live in the apartment, it is a violation of the FHAA or Sec. 504 for the landlord to refuse to rent to the blind person because the person cannot comply with a no pets policy. HUD reasons that without the seeing eye dog, the blind person would not have an equal opportunity, as compared to non-blind tenants, to use and enjoy the dwelling. [ FN30 ]
Similar reasoning can be used to argue waiver of a no pets policy as a reasonable accommodation for a mentally disabled person, as illustrated by the cases below. Although there can be as many forms of reasonable accommodations as there are different persons with different disabilities, the present discussion focuses only on waiving a no pets policy as a reasonable accommodation for a mentally disabled person.
A. DEVELOPMENT OF REASONABLE ACCOMMODATION STANDARDS
As noted above in Section II.B, even though Sec. 504 does not expressly use the phrase "reasonable accommodation," it has been read into the statute by case law and HUD regulations interpreting the statute. [ FN31 ] In contrast, the FHAA expressly incorporates the concept of "reasonable accommodation" into its statute, stating that "it shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services..." [ FN32 ]
Case law further defines the requirements for a mentally disabled person to establish waiving a no pets policy as a reasonable accommodation, namely: (1) the accommodation must facilitate the disabled person’s ability to function; and (2) the accommodation must pass a cost-benefit balancing test that takes both parties’ needs into account. [ FN33 ] The former is often the focus of disagreement between landlord and tenant.
B. EMOTIONAL SUPPORT ANIMALS AS REASONABLE ACCOMMODATION
As is the case in many areas of law, the issue of what constitutes "reasonable" underlies much litigation in the area of animals as reasonable accommodations. A number of cases have held that an emotional support animal is a reasonable accommodation under Sec. 504 and the FHAA. The United States Court of Appeals for the Fifth Circuit, in Majors v. Housing Authority of the County of DeKalb Georgia , was the first court to hold that a housing authority’s failure to waive a no pets policy to accommodate a mentally disabled tenant amounted to discrimination. [ FN34 ]
i. MAJORS CASE [ FN35 ]
In 1981, Majors v. Housing Authority of DeKalb Georgia was the first case to confront the issue of an emotional support animal qualifying as a reasonable accommodation for a tenant’s mental disability. Ms. Majors, a poor woman with a long history of psychological problems, kept a small dog in her apartment, despite a no pets provision in her lease agreement. The housing authority served Ms. Majors with a notice of termination of her lease based on her possession of an animal in violation of her lease. Ms. Majors brought suit to enjoin the housing authority from terminating her lease. She alleged that the housing authority discriminated against her in violation of Sec. 504 for failing to accommodate her mental disability, and that her disability required the companionship of her dog. The district court granted the housing authority’s motion for summary judgment, reasoning that Ms. Majors was not an "otherwise qualified" handicapped individual within Sec. 504 because she could not comply with the no pets provision. Ms. Majors appealed the decision.
For purposes of reviewing the lower court's summary judgment ruling, the parties stipulated to the fact that Ms. Majors had a mental disability that required her to keep the dog in her apartment, that the only reason Ms. Majors was being evicted was because of her violation of the no pets provision, and that the housing authority received federal financial assistance. Also, expert testimony clearly showed that Ms. Majors had a psychological and emotional dependence on her dog.
The issue before the court was whether Ms. Majors could be "otherwise qualified" under Sec. 504 despite her inability to meet the no pets policy because her mental disability required the companionship of a dog. The court noted that whether a person is "otherwise qualified" depends on whether the person can meet all of the requirements of the program in spite of the handicap. The court also noted that the determination of whether a person is "otherwise qualified" under Sec. 504 must be considered "in the context of whether reasonable accommodations will permit the handicapped person to realize the principle benefits of the program." Lastly, the court stated that Sec. 504 does not require the recipient of federal financial assistance to provide accommodations that impose undue financial or administrative burdens, or that fundamentally alters the nature of the program.
The court held that the housing authority illegally deprived Ms. Majors of the benefits of the housing program by enforcing the no pets rule. The court held that waiving the no pets policy for Ms. Majors was a reasonable accommodation because: (1) Ms. Majors could enjoy the full benefit of the program if provided an accommodation for her alleged disability; (2) the housing authority "could easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires the companionship of a dog"; and (3) the no pets policy is not a fundamental part of the housing program. The court reversed the district court’s grant of summary judgment, and remanded the case to determine the factual issues of whether Ms. Majors was handicapped, if the handicap required the companionship of the dog, and what reasonable accommodations can be made.
The Majors court, having held that a mentally disabled tenant can be "otherwise qualified" under Sec. 504, despite an inability to meet a no pets policy, enabled the Massachusetts Court of Appeals in Whittier Terrace Associates v. Hampshire to hold that a housing authority discriminated against a tenant for failure to allow an emotional support animal.
ii. WHITTIER TERRACE CASE [ FN36 ]
State courts noted the precedential value that the Majors court created in this area of the law, and in 1989, the Massachusetts Court of Appeals took the opportunity to apply the analysis begun in Majors to hold a housing authority responsible for discrimination. Like Ms. Majors, 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. The court further reasoned that, in balance, this case represents an instance where the landlord’s continued enforcement of the no pets policy, would arbitrarily deprive the handicapped person of the benefits of the housing program. The court, citing Majors , held that there must be a narrow exception "to the rigid application of a no-pet rule, involving no untoward collateral consequences," because the handicapped person can fully receive the benefits of the program if provided the accommodation. The court reversed the decision of the lower court. Having clearly held that a landlord’s failure to waive a no pets policy may amount to a violation of Sec. 504, courts next turned to an in-depth analysis of what degree of connection between the emotional support animal and the mental disability must be established.
C. NEXUS BETWEEN EMOTIONAL SUPPORT ANIMAL AND MENTAL DISABILITY
After the Majors and Whittier Terrace courts established the foundational principles that a tenant can be "otherwise qualified" under Sec. 504 despite an inability to comply with a no pets policy, and that a waiver of a no pets policy can be a reasonable accommodation under Sec. 504, courts took the analysis one step further by articulating the required nexus between the animal and the disability. Courts have held that emotional distress expected to occur if a person is forced to given up an animal will not support a claim that a reasonable accommodation must be made. The following cases provide insight into the degree of nexus between the animal and the disability required under federal law.
i. LEBOO CASE [ FN37 ]
The City Court of Rochester, New York, established that if there is evidence that a tenant needs an emotional support animal to lessen the effects of a mental disability, a factual determination of the nexus between the animal and the disability must be made, thereby precluding an award of summary judgment in favor of a housing authority. In the LeBoo case, the landlord of a federally-funded apartment complex brought an eviction proceeding against a tenant with a long history of mental illness for possessing a cat in the rental unit in violation of a no pets policy. 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 tenant also alleged that he required the companionship of his cat to cope with his mental disability, that he needed the cat to fully use and enjoy his apartment, and that his need for the cat was protected by Sec. 504 and the FHAA. The housing authority argued that the tenant’s disability did not require him to keep the cat in his apartment in order to use and enjoy the rental unit.
The court held that in order to state a prima facie case the tenant must prove that the pet is necessary for him to use and enjoy the apartment. In order to meet this element, the tenant must "demonstrate that he has an emotional and psychological dependence on the cat which requires him to keep the cat in the apartment." The tenant submitted evidence from his psychiatrist and other experts supporting his assertion 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. The court held that the tenant established that he both had a disability and is "otherwise qualified" under Sec. 504, denied the housing authority’s motion for summary judgment, and held that there was a triable issue of fact as to whether the cat was necessary for the tenant to use and enjoy his apartment.
The U.S. District Court for the Northern District of California, in Janush v. Charities Housing Development Corp ., refined the nexus requirement by holding that the analysis does not depend on the species of the animal.
ii. JANUSH CASE [ FN38 ]
The court in Janush took the required nexus analysis one step further by holding that what is a reasonable accommodation is a fact-based, and not species-based, issue. The tenant in Janush suffered from a severe mental health disability, and kept two birds and two cats in her apartment. Expert testimony showed that the animals provided her with companionship and lessened the effects of her mental disability. Based on her violation of a no pets provision in her lease agreement, the housing authority filed an eviction proceeding. After having found new housing, the former tenant filed suit, alleging that the housing authority failed to reasonably accommodate her disability under the FHAA.
The housing authority argued for a bright-line rule that accommodation of animals other than service dogs, as defined under California state law, is per se unreasonable. The court rejected the argument, stating that federal regulations provide a broad definition of service animals, and that an animal does not even have to be a service animal to be a reasonable accommodation under federal law. The court stated that whether an accommodation is reasonable is fact-specific, requiring an inquiry into the administrative burdens or costs placed on the owner to accommodate the disabled person, and denied the housing authority’s motion for summary judgment. However, as demonstrated in the next case, the factual circumstances that will support a nexus between the animal and the disability are not limitless.
iii. NASON CASE [ FN39 ]
While the court in Janush offered a broad view of animals as reasonable accommodations, the Nason court focused on the factual support necessary to establish a nexus between the disability and the animal. In the Nason case, the tenant was physically disabled from symptoms of multiple sclerosis. The tenant decided to take in her mother’s cat after her mother became seriously ill, despite the housing authority's no pets policy. The housing authority requested that the tenant remove the cat but, after learning of her mother’s illness, did not take further action. 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.
Although courts have demonstrated that the required nexus analysis is fact-intensive, courts have been willing to create rules stating whether specific training is necessary for an animal to be a reasonable accommodation.
D. TRAINING NECESSARY FOR ANIMAL TO BE REASONABLE ACCOMMODATION
Courts have consistently refused to hold that only certified animals may be reasonable accommodations. Instead, courts affirm early analysis that what is a reasonable accommodation requires a fact-specific analysis of whether the animal lessens the effects of the specific person’s disability, and does not depend on the animal receiving professional training.
i. BRONK CASE [ FN40 ]
In Bronk , plaintiffs were deaf tenants renting a townhouse unit, and kept an alleged hearing dog in their apartment, despite a no pets policy. The defendant refused to modify its no pets policy to allow the dog in the renal unit, and after discovering the dog in the unit, required the tenants to remove the dog. The tenants filed a complaint alleging that the landlord discriminated against them in violation of the FHA for failure to allow them to keep a dog in their rental unit. The landlord argued that the dog was not a certified "hearing dog," and that the tenants did not have a legitimate need for the dog. The tenants lost at the trial level and appealed.
The Bronk court defined two standards a disabled person must meet in arguing that an accommodation be made: (1) the accommodation must facilitate the disabled person’s ability to function; and (2) the accommodation must survive a cost-benefit balancing that takes both parties’ needs into account. The court first discussed the latter, holding that "balanced against a landlord’s economic or aesthetic concerns as expressed in a no pets policy, a deaf individual’s need for the accommodations afforded by a hearing dog is per se reasonable within the meaning of the FHA."
The court next turned to the issue of the dog’s necessity, noting that if the dog was not necessary as a hearing dog, the animal’s presence was not necessarily a reasonable accommodation. The court held that in analyzing whether a reasonable accommodation facilitates a disabled person’s ability to function, professional credentials of the animal can be considered, but are not necessary. The court, considering evidence supporting defendant’s assertion that the dog did not have any skills that would facilitate the deaf tenant’s ability to function, stated that the defendant’s allegations may be correct. However, due to misleading jury instructions at the trial level, the court did not rule on the issue, and instead reversed and remanded the decision to the lower court.
The next case, Green v. Housing Authority of Clackamas County , provides a concrete example of a housing authority violating Sec. 504 and the FHAA by requiring proof that the animal is certified as trained for the tenant’s specific disability.
ii. GREEN CASE [ FN41 ]
Like the tenants in Bronk , one of the tenants in the Green case was physically disabled due to deafness in both ears, and kept a hearing dog in the apartment, despite a no pets policy. The dog underwent training by the tenants as well as professional training, and the tenants alleged that the dog alerted the deaf tenant to various sounds, such as knocks at the door. The tenants requested a waiver of the no pets policy, but the housing authority refused to modify its policy. The tenants removed the dog from the premises, and filed an action alleging violation of the FHA and Sec. 504. Before the court was the issue of whether the dog was a hearing assistance dog, or merely a household pet.
The housing authority argued that the dog was not appropriate for the tenant’s specific disability because the dog was not certified as a hearing assistance animal. The court rejected the defendant’s argument, holding that there is no requirement under federal law that an assistive animal be trained by a certified trainer. Instead, the court cited Bronk , stating that the accommodation must facilitate the disabled person’s ability to function, and survive a balancing of the tenant’s needs against the burdens placed on the landlord. The court noted that Congress enacted laws requiring a housing authority to make reasonable accommodations, and that the housing authority therefore cannot implement policies, such as the certification requirement in the present case, that would limit the participation of handicapped tenants.
The court denied the housing authority’s argument that the flashing lights it installed were a more reasonable accommodation than the dog, reasoning that the dog alerted the tenant to sounds which the lights could not, such as the sound of a telephone ringing or a smoke alarm. After holding that no undue burden would be placed on the housing authority by allowing the dog in the rental unit, the court held that the housing authority violated the FHAA and Sec. 504 by failing to accommodate the tenants’ request, and granted the tenants’ motion for summary judgment.
Somewhat contradictory to the cases above, the following two cases held that a housing authority may, but need not, require proof of certification of the animal.
iii. KENNA HOMES CASE [ FN42 ]
In the Kenna Homes case, the owners of a cooperative unit kept a dog in their home despite a policy against allowing pets. There was an exception to the no pets policy for dogs that were "properly trained and certified for the particular disability." The owners provided a note from their physician stating that "it is a medical necessity for the Jessups with their present health ailments to be able to keep their pets to suppress both the physical and mental need for companionship as well as the confinement due to the various illnesses." The housing authority denied the Jessups’ request to waive the no pets policy and filed a Petition for Declaratory Judgment that they were not required to allow the pet in the housing as a reasonable accommodation under federal or state law. The lower court held that the housing authority did not violate any laws and the Jessups appealed.
The Jessups argued that the cooperative unit’s policy that only properly trained, certified service dogs are allowed in housing, violates federal laws. The housing authority argued that their policy allowed for necessary, reasonable accommodations, and did not violate federal laws. The court held that the policy did not violate federal law because it only required that the animal be "properly trained," but did not require "professional training," which would violate federal law based on the holdings of the Bronk and Green courts. The court next noted that, on its face, the policy requiring that the animal be certified for a particular disability does appear to violate the FHAA, because there are no uniform certification processes throughout the country, and a large burden would therefore be placed on the tenant. However, the court held the provision was valid, reasoning that there was evidence that the housing authority would apply the standard flexibly, and not require written certification if a large burden would be placed on the tenant. Therefore, the court affirmed the decision of the lower court, holding that the housing authority’s policy did not violate federal law.
It should be noted that the Kenna Homes case was decided by a West Virginia state court and therefore does not hold any precedential value outside that jurisdiction. In the next case, a U.S. Federal District Court came to a similar holding as that of Kenna Homes but, again, this is a district court and does not hold precedential value outside that jurisdiction.
iv. PRINDABLE CASE [ FN43 ]
In the Prindable case, the bylaws of a condominium association stated that animals are not allowed on the premises, except that qualified individuals with disabilities may have assistance animals. The tenant in Prindable provided the housing authority with a letter from his physician stating that a situation arose whereby he felt unsafe in the apartment building and that "He believes that his personal safety will be improved if he were to have a dog." The U.S. District Court for the District of Hawaii held that where the primary handicap is mental or emotional in nature, an animal "must be peculiarly suited to ameliorate the unique problems of the mentally disabled." In holding that evidence of individual training of a service animal may be required by a housing authority to distinguish the animal from a household pet, the court reasoned that most animals are not capable of qualifying as a "service" animal under the FHA. The court denied the tenant’s argument that his animal was a service animal because it had been individually trained to provide emotional support and could "alert [him] to unusual circumstances," reasoning that there was no evidence of training of the animal. The court granted the housing authority’s motion for summary judgment on the issue of the housing authority’s alleged failure to make a reasonable accommodation under the FHA.
The Kenna Homes and Prindable courts allow proof of training of the animal in an effort to distinguish between ordinary household pets and animals that truly lessen the effects of a tenant’s disability. This goal is not new, although the Kenna Homes and Prindable courts' methods to achieve this goal differ from previous courts. As demonstrated above, previous courts accomplish this goal by requiring evidence of a "nexus" between the emotional support animal and the mental disability, which appears to be much more effective than requiring training of the animal.
Even if a tenant proves all of the elements required under either the FHAA or Sec. 504, there are limited exceptions to a housing authority’s requirement to waive a no pets policy.
V. EXCEPTIONS TO WAIVER OF NO PETS RULE AND DEFENSES EVEN IF DISABLED PERSON MEETS CRITERIA OF STATUTE
Even if a tenant has an established mental disability that requires the presence of a companion animal to lessen the effects of the disability, a landlord can avoid modifying its no pets policy if the animal fundamentally alters the nature of the housing program or if the landlord suffers an undue financial or administrative burden. [ FN44 ] Many courts have held that no undue burden would be placed on a housing authority if required to waive a no pets policy, and that the waiver would not alter the fundamental nature of the program. [ FN45 ] Courts reason that a no pets policy is not a fundamental part of most housing programs, that a waiver does not impose costs on the landlord, and that any administrative burdens imposed in having to keep a record of the animal is minimal.
A landlord can also avoid modifying a no pets policy if the tenant would pose a significant risk to the safety or property of others. This exception takes the potential tenant out of the protection of the statutes, and the presence of an emotional support animal is therefore not at issue. Speculation of a safety threat will not suffice. Instead, there must be objective evidence, for example, that the person had committed overt acts in the past that caused harm or threatened to harm others. [ FN46 ]
In addition, a landlord can reject a person’s application to rent, or evict a current tenant who has a disability, if the tenant refuses or is unable to comply with legitimate tenancy rules that apply to all tenants. [ FN47 ] For example, in Woodside Village v.Hertzmark , a tenant was unable to adhere to the apartment rules requiring that dogs be walked in designated areas and that the animal’s waste be cleaned up. The court held that the plaintiff made reasonable accommodations for the tenant’s disability by allowing the animal if the tenant could adhere to the rules, and did not need to release the tenant of the apartment rules under the FHAA. The court reasoned that the tenant’s failure to adhere to these rules, despite his mental disability and emotional dependence on the dog, put the health, safety, and comfort of other tenants at risk. [ FN48 ]
As clearly demonstrated by the factual circumstances of the cases above, animals indeed can assist mentally disabled persons in their daily lives by lessening the effects of the disability and increasing their quality of life. These cases also demonstrate there are often no burdens on the landlord if required to allow an animal in a rental unit for this narrow group of persons. Although some landlords feared a "flood-gate" of tenants claiming the need for an emotional support animal, in practice this has not occurred.
These cases also support the theory that many mentally disabled persons unfortunately have little money and are forced to rent public housing. This places the disabled persons in a situation where they are unlikely to have access to legal services. It is sad to think of a mentally disabled person giving up his or her animal to the humane society because of the mistaken belief that the animal must be removed based on an eviction notice. Not only is the animal’s fate questionable, but the disabled person’s quality of life is reduced. One can only speculate how often this happens. Even though these persons have legal remedies, as outlined in the discussion above, without enforcement these laws do not serve their purpose to end discrimination against disabled persons. Legal communities should feel compelled to aid the less fortunate by providing disabled persons with access to legal services, by informing disabled persons that if their animals lessen the effects of their mental disability they have a right to keep the animal in the rental unit, and by helping to enforce those rights when violated.
Sec. 504 and the FHAA provide protection for mentally disabled persons against housing discrimination when a landlord fails to allow an emotional support animal in the rental unit as a reasonable accommodation. As Americans we value just courses of action. We should therefore send a strong message to housing authorities that it is not okay to strip an emotional support animal from the life of a mentally disabled person, for such an arbitrary reason as there being words printed on a piece of paper saying that an animal is not allowed to live in the apartment. Congress has said this is not okay, and as a society we should not tolerate such unjust treatment of the less fortunate members of our society.
FN1 Liz Lipton, Clinical & Research News, "Some Patients Petting Their Way to Improved Mental Health," February 2, 2000. http://www.psych.org
FN2 Janush v. Charities Hous. Dev. Corp . , 169 F. Supp. 2d 1133 (N.D. Cal. 2000).
FN3 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN4 This article does not focus on state law, general housing discrimination against persons with mental disabilities, or general landlord-tenant law.
FN5 29 U.S.C. § 794 (2005) ; 42 U.S.C. § 3604 (2005).
FN6 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN7 29 U.S.C. § 794 (2005) ; 42 U.S.C. § 3604 (2005).
FN9 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN12 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN13 See HUD regulations at 24 C.F.R. 8.1 et. seq. and FN3.
FN14 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN15 Southeastern Cmty. Coll. v. Davis , 99 S. Ct. 2361 (1979) (holding that an applicant for a nursing program was not "otherwise qualified" because, due to her hearing disability, she was not able to meet the requirements of the nursing program in spite of her handicap).
FN16 Whittier Terrace Assoc. v. Hampshire , 532 N.E.2d 712 (Mass. App. Ct. 1989).
FN19 Janush v. Charities Hous. Dev. Corp . , 169 F. Supp. 2d 1133 (N.D. Cal. 2000).
FN20 Janush v. Charities Hous. Dev. Corp. , 169 F. Supp. 2d 1133 (N.D. Cal. 2000).
FN21 Janush v. Charities Hous. Dev. Corp. , 169 F. Supp. 2d 1133 (N.D. Cal. 2000).
FN22 42 U.S.C. § 3602 (2005) ; 29 U.S.C. § 705 (2005).
FN23 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN24 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN25 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN26 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN27 Bronk v. Inichen , 54 F.3d 425 (7th Cir. 1995).
FN28 Hous. Auth. of New London v. Tarrant , 1997 WL 30320 (Conn. Super. Ct. 1997).
FN29 Bronk v. Inichen , 54 F.3d 425 (7th Cir. 1995).
FN30 24 C.F.R. § 100.204 (2005).
FN31 See HUD regulations at 24 C.F.R. 8.1 et. seq. and FN3.
FN33 Bronk v. Inichen , 54 F.3d 425 (7th Cir. 1995).
FN34 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN35 Majors v. Hous. Auth. of DeKalb Ga . , 652 F.2d 454 (5th Cir. 1981).
FN36 Whittier Terrace Assoc. v. Hampshire , 532 N.E.2d 712 (Mass. App. Ct. 1989).
FN37 Crossroads Apartments Assoc. v. LeBoo , 578 N.Y.S.2d 1004 (N.Y. City Ct. 1991).
FN38 Janush v. Charities Hous. Dev. Corp. , 169 F. Supp. 2d 1133 (N.D. Cal. 2000).
FN39 Nason v. Stone Hill Realty Ass’n , 1996 WL 1186942 (Mass. Super. Ct. 1996).
FN40 Bronk v. Inichen , 54 F.3d 425 (7th Cir. 1995).
FN41 Green v. Hous. Auth. of Clackamas , 994 F. Supp. 1253 (D. Or. 1998).
FN42 In re Kenna Homes Coop. Corp ., 557 S.E.2d 787 (W. Va. 2001).
FN43 Prindable v. Ass’n of Apartment Owners , 304 F. Supp. 2d 1245 (D. Haw. 2003).
FN44 Majors v. Hous. Auth. of DeKalb Ga. , 652 F.2d 454 (5th Cir. 1981); 24 C.F.R. § 8.3 (2005) ;
FN45 Whittier Terrace Assoc. v. Hampshire , 532 N.E.2d 712 (Mass. App. Ct. 1989).
FN46 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN47 24 C.F.R. § 8.3 (2005) ; 24 C.F.R. § 100.201 (2005).
FN48 Woodside Vill. v. Hertzmark , 1993 WL 268293 (Conn. Super. Ct. 1993).