It has been more than five years since the federal law on assistance animals got its last major revision; yet, landlords continue to send questions and comments on the topic to our chat, email and online forums.
Admittedly, it was a dramatic shift, requiring rental property owners who had traditionally banned dogs and other animals to accept tenants with assistance animals. Even landlords who welcomed pets have been scratching their heads over new guidelines on animal deposits and fees.
Doubtless, some of the confusion stems from additional rules that individual states set on assistance animals in rentals. Canada's provinces have also set their own guidelines. But basic questions also surround what, exactly, an assistance animal is.
So, here is our primer on the definitions, the rules, and the sources for more information on assistance animals in rental units.
Is my tenant's iguana considered a service animal?
When it comes to stating whether or not a tenant's animal will be accepted in a rental, landlords must be sure they are on the right side of the law.
In both Canada and the U.S., it is illegal to discriminate against those with disabilities; sometimes, the disabled must rely on assistance animals to carry out tasks they can't perform on their own. These animals are not in the same legal class as pets, although they may be loved and considered part of the owner's family.
Canadian landlords should review individual provincial rules in deciding how to handle a tenant's request to allow an assistance animal. The non-profit Canadian Foundation for Animal Assisted Support Services is a good resource. Helpful information also may be found in The Assistance Dogs International's “Guide to Assistance Dog Laws.”
In the U.S., there are two federal laws to consider:
- The Americans With Disabilities Act (ADA)
- The Fair Housing Act (FHA)
The ADA mandates that service animals must be permitted in public places and federally-subsidized housing. That means that landlords who receive subsidies must, under most circumstances, permit service animals to live in a rental unit and they may not charge a pet deposit or pet fees.
So, the first thing to consider is whether an animal meets the service animal standard. Say your tenant seeks permission to keep Iggy, the iguana, in the unit, explaining that the reptile provides emotional support. You can be sure that the reptile fails the test for service animal on two counts:
- Only dogs are considered service animals under the Americans With Disabilities Act (ADA).*
- Emotional support animals are not considered service animals.
Other species that do not qualify as service animals may be considered assistance animals (as described later in this article). Cats, birds, rats and monkeys, for instance, are used by those with disabilities to carry out tasks and to provide emotional support.
However, in addition to the species requirement, service animals are legally defined as having been trained to supply specific assistance to their handlers, such as recognizing an impending seizure, or guiding a handler who is blind or visually impaired. To determine if the dog in question is a service animal, landlords may ask:
- Does the tenant have a physical or mental impairment that substantially interferes with his or her main life activities?
- Does the tenant have a disability-related need for the assistance that the dog is specifically trained to provide?
If the tenant answers “Yes,” to both questions, the dog qualifies as a service animal. NOTE: If the disability is obvious, such as with a blind tenant or a tenant using a wheelchair; and if the landlord can see that the dog is obviously providing assistance, then the landlord legally may not ask the above questions.
In fact, landlords are prohibited from asking certain questions of service animal owners. For instance, a tenant cannot be asked to show a service animal certificate – not all service animals have them – and the landlord cannot demand that the tenant show proof of his or her disability.
Finally, no dog breed is exempt from being a service animal in the United States. Therefore, landlords may not ban a service dog based on its breed, even if state or local law forbid certain dog breeds, such as Staffordshire bull terriers, American bulldogs or Brazilian mastiffs.
What about animals that do not qualify as service animals?
What if your tenant's animals fails the ADA service animal test? Do you have to allow it in your rental?
The answer here is, “Maybe.”
Under the FHA, an assistance animal is one that helps someone with a disability carry out major life activities. It is considered an essential accommodation and denying a disabled person access to accommodations is discriminatory and illegal. In other words, disabled tenants have a right to have assistance animals.
Even though an assistance animal may not have specific training for the particular service it provides – such as alerting a deaf tenant to a ringing doorbell or providing an autistic person with calming emotional support – it may still qualify as an accepted accommodation.
Unlike the rules on service animals, the landlord is legally permitted to ask questions to determine if the animal is a required accommodation. If a tenant claims he or she uses an animal an assistance animal, and the animal is not a service animal, the landlord may seek the following information:
- Ask the tenant to certify in writing that he or she has a disability. The landlord may ask the tenant to provide a letter from a doctor or therapist, but may not ask for medical records.
- Ask the tenant to explain in writing the need for the animal and explain how the animal assists.
If the animal qualifies, the landlord must, in most cases, permit the animal and may not require a pet deposit or charge a pet fee.
The only exceptions to the requirement to accommodate assistance animals in rentals are:
- An animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation.
- The animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
- The rental is a dwelling of four or fewer units and one unit is occupied by the owner; or the rental is a single family home that the landlord leases without help from a broker; or the rental is owned by a private organization that only rents to its members and the disabled tenant is not a member.
So, a cat-lover who would be heartbroken without a feline friend in her rental doesn't meet the assistance animal definition if the cat is merely a companion. Likewise, a dog who helps his master overcome fear of being alone at night doesn't qualify – unless a doctor or therapist has indicated that the owner's fears are debilitating, and that animal assistance is a needed accommodation.
In addition, therapy and comfort animals, often in use in nursing homes, rehabilitation centers, schools and other settings, are not automatically considered assistance animals.
Will my rentals go to the dogs under these laws?
Just because your tenant has a disability that requires you to permit an assistance animal does not mean that your rental will become a hairy mess. Assistance animals must be under the handler's control at all times. They must be housebroken, and you may set a reasonable outside location for dogs to do their business.
Landlords are permitted, under public health laws, to ban assistance animals from using swimming pools. And if the animal's barking or squawking prompts noise complaints from neighbors, the landlord has the right to require the tenant to keep the animal quieter.
As for damages that many landlords aim to avoid by banning pets, assistance animals and their owners don't get a free pass. If a disabled tenant moves out and repairs are needed because the assistance animal caused damage – beyond normal wear and tear – the landlord may retain security deposit monies just as when any other tenant damages a unit.
In many cases, the landlord and neighbors may not even notice there is an assistance animal in a rental unit. When they do notice, it usually is because the assistance animal is doing an impressive job of assisting its owner. Animals can be trained to detect a diabetic's dropping blood sugar levels, to remind a person to take medication, and to corral a wandering child whose autism prevents him from recognizing danger. They can retrieve items that are out of reach for someone who is paralyzed, and can guide a person who is lost and has Alzheimer's toward home and safety.
Assistance animal guidelines have been enacted to help the disabled achieve independence they previously couldn't have enjoyed. Landlords are required to follow these guidelines, so be very careful about setting restrictions that could violate rights. And, if you're proactive in choosing durable flooring and other materials for your unit that can withstand a little animal activity, you'll be less concerned about the inevitable paw prints and drool that come with those animal helpers.
*Miniature horses are the only exception to the dog-only rule for service animals; however, they must be individually trained to work with or carry out tasks for those with disabilities.