You manage a building with a no-pet policy. A resident walks into your office and proclaims that she needs to have a companion animal, a big Siberian Husky, right now. Your inclination is to tell her no way, because you don’t allow any pets, and certainly not a big dog. What should you do?
Recently, there have been many more requests from residents and applicants for service animals. In the past, these primarily involved seeing-eye dogs, but now there are numerous requests for emotional support or comfort animals, which are primarily dogs or cats, but can also be other animals such as birds, monkeys or iguanas.
Various studies have demonstrated that emotional support animals can assist in the treatment of physical and mental illness. They can help decrease depression, stress and anxiety. An increasing number of hospitals now allow pets on their floors to comfort patients.
A request for a service animal in a no-pet building, or a request for an overweight animal or prohibited breed in a pet-friendly building triggers fair housing issues. Both Massachusetts and federal law make it unlawful for a landlord to refuse to make a reasonable accommodation in rules, policies, practices or services when the accommodation is necessary to afford a disabled person an equal opportunity to use and enjoy the apartment.
Waiving a no-pet policy or allowing an overweight animal or a prohibited breed are examples of reasonable accommodations.
A request for a reasonable accommodation must be considered on a case-by-case basis, and a resident’s need for an emotional support animal may not be obvious. You should have the resident complete a reasonable accommodation form, and obtain documentation from their physician as to the resident’s disability, as well as the connection between the disability and the companion animal. If the physician indicates that a particular animal is needed for the resident’s treatment, you generally have to allow the animal.
But what if the animal is a pit bull or a Rottweiler? These are not just prohibited breeds, but also potentially dangerous dogs. If you encounter this situation, first confirm the need for a service animal and then continue with the interactive process, making it clear that you will allow a service animal but perhaps not a dangerous breed. Place the burden on the resident to demonstrate why he needs this particular animal as opposed to one which is not potentially as dangerous.
It is clear that whether you have a no-pet building or a pet-friendly building, you must allow service animals and overweight and prohibited breeds. Not following the fair housing laws can be costly.
Case Of The German Shepherd
One example occurred in Chelsea a few years ago. A resident of the Housing Authority requested a companion animal for her emotional disorder that caused migraines, anxiety and depression. Her physician supported her request. The authority allowed her to have a dog, but not a German Shepherd, which far exceeded the 20-pound weight limit. The attorney general sued, asserting that enforcement of the weight limit constituted a failure to reasonably accommodate her disability. The authority settled the case, allowing her to have the German Shepherd and paying $78,000 in damages.
However, the law does provide that a resident’s request for a reasonable accommodation which results in an undue hardship to the landlord, or a direct threat to other individuals, need not be granted, so a service animal must not cause serious problems for other residents.
If it bites or threatens other residents, or barks incessantly after warnings, you can inform the resident that he or she must remove the service animal, but may replace it with another animal that will abide by the lease. If the resident refuses, you may be able to commence eviction proceedings, depending upon the specific circumstances.
Similarly, the resident must take proper care of the animal. It must have all required vaccinations and licenses, and dogs must be kept on a leash. The resident is liable for any damage the animal does to the unit or any common areas.
If you allow pets and charge monthly pet rent, remember that you cannot charge anything for a service animal because it is not considered to be a pet.
In the future there will be an increasing number of requests for all kinds of service animals. When dealing with these requests, you must follow fair housing laws so as not to open yourself up to a claim of discrimination. By knowing the proper procedures and carefully considering each request, you can keep your building running smoothly while protecting the rights of those who are entitled to have a service animal.
Kenneth A. Krems is a partner in the Boston law firm of Shaevel & Krems LLP, where he focuses on residential and commercial real estate management and other real estate issues.
