DARLENE HIGA (RA), MPM, RMP
Property Profi les, Inc.
Past President, Oahu Chapter
National Association of Residential Property Managers
Q. A prospective tenant just applied for my rental unit and claims to have a service animal (dog) and another animal (cat) who is a comfort animal for the dog. I think this person is using the Fair Housing law as an excuse to bring their pets in. What should I do?
A. Welcome to the new world of property management! As in all businesses, life evolves and new issues pop up which you have to deal with. Retail stores are battling cyber-crime, restaurants are dealing with Hepatitis A, and just about everyone else deals with new laws and restrictions placed upon them by Government. Property management is dealing with the influx of tenants using the ADA and Fair Housing laws to get their pets into homes.
Let’s first look at what the law is. Under the American with Disabilities Act (ADA), a service animal is defined as a dog, or miniature horse, that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed must be directly related to the person’s disability. Does an emotional support, therapy, comfort, or companion animal fall under this category? No, not under the ADA, they do not qualify as a “service” animal. However, state or local governments have laws that may cover these animals. In Hawaii, service animals and emotional support animals are referred to as “assistance” animals.
Assistance animals who are not service animals do not need to be trained and can be an animal other than a dog or miniature horse. Under the Federal Fair Housing Act, landlords are obligated to permit, as a reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with disabilities, or provide emotional support to alleviate a symptom or effect of a disability. Even if there is a “no pet” policy in place, these animals are not considered pets. A landlord must agree to a “reasonable accommodation” request to keep the animal that aids the tenant with their disability… if their disability claim is true. Herein lies the problem, how do you determine if the tenant’s claim is true? And what kind of evidence can you ask for to make that determination?
Under the Federal Fair Housing Act, you are limited to: 1) Asking for verification from the tenant’s health care provider that the tenant is a disabled person pursuant to the definition from the Fair Housing Act, 2) In their professional opinion, does the tenant need the accommodation requested in order to have the same opportunity that a non-disabled person would have to use and enjoy the living quarters, 3) Can the tenant’s condition be otherwise treated to prevent any substantial limits in any of his/her major life activities.
Landlords who outright refuse to rent or even show units to tenants who claim to have a legitimate service or assistance animal may be in violation of federal law and may face stiff fines and even jail time.
So what do you do as a Landlord? Treat the prospective tenant as if they did not have a “pet,” show them the property, and if they apply and pass your qualification guidelines, you must rent to them. You can put reasonable restrictions in place such as: 1) Requiring the tenant to observe applicable leash and pick-up laws 2) To assume responsibility for any damage caused by the animal 3) Require to have the dwelling cleaned, fumigated, deodorized, and carpets professionally cleaned 4) Require to have the animal under the control of its handler at all times 5) Require that the animal does not create disturbances such as excessive barking or create an unsafe environment for others.
Even if you suspect they are providing false information but you can’t verify it’s accuracy, it’s better to err on the side of caution rather than guess wrong and have to deal with a discrimination complaint filed against you.
Regarding the tenant’s claim that their service animal has an emotional support animal? There is no such thing as a comfort animal for a service animal. The human with disabilities has “rights,” not the animal.