Property managers and agents holding open houses should be aware of the need to accommodate service and assistance animals, what they can and cannot ask and how to proceed on a moment’s notice. The Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) both require accommodation for qualified animals, but do you have to tolerate that dog peeing on your carpet?! The answer is “no;” however, be cautioned how to determine what animals to accommodate.
The ADA, affecting all public entities, has the more restrictive requirements, so evaluate those first. The ADA protects “service animals,” which covers only dogs specifically trained to do work or perform tasks directly related to their person’s disability. Other animals and comfort, support or therapy animals are not covered by the ADA protections. When it is not readily apparent that the dog is a service animal, you may ask only two questions:
- Is the dog a service animal required because of a disability? and
- What work or task has the dog been trained to perform?
You may not ask about the individual’s disability or require documentation or a demonstration of the task. The animal is not required to have professional certification or wear an identifying harness or tag. However, the handler must supervise the service animal and be responsible for the dog’s behavior, including toileting, shedding and any aggressive behavior. Even a service animal may be denied access if the animal is: (1) out of control, (2) not housebroken or (3) poses a direct threat to the health or safety of others that cannot be addressed by reasonable modifications. The direct threat determination must be based on the specific service animal’s conduct rather than generalizations, so a pit bull service animal cannot be excluded based on fear of pit bulls.
A service animal is not a pet, so you cannot require a pet deposit or other premium and the service animal must be allowed to go anywhere a member of the public is permitted.
Even though the comfort cat does not qualify as a service animal under the ADA, the analysis is not complete. The FHA and Section 504 of the Rehabilitation Act, protect “assistance animals” as well. Assistance animals include any animal that provides assistance or performs a task to benefit a person with a disability or provides emotional support that alleviates symptoms or effects of the individual’s disability. Thus support, therapy, comfort and companion animals may all be included. If it is not readily apparent the nature of the individual’s disability, you may ask the
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person with an animal to submit reliable documentation of their disability and the need for an assistance animal. A note from a mental health provider, confirming a disability and that the animal provides some assistance or emotional support shall suffice.
The housing provider, including landlords, property managers and real estate agents showing properties must make exceptions to “no pet” policies for assistance animals, allowing them access to anywhere the public may go unless: (1) allowing the access would pose an undue financial and administrative burden; (2) would fundamentally alter the nature of the housing provider’s services; (3) the specific animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by other reasonable accommodation; or (4); the specific animal causes substantial physical damage to the property of others that cannot be reduced or eliminated by other reasonable accommodation. The determinations of “undue burden” and “reasonable accommodation” require individual assessments and “reasonable accommodation” requires communication with the individuals impacted. Accommodating assistance animals and others with allergies may require finesse.
The analysis is different for air travel under the Air Carrier Access Act. Delta Airlines recently revised their policies to limit customers to one service or assistance animal, no service or assistance animals that are less than 4 months of age due to vaccination requirements, no service or assistance animals on flights longer than 8 hours due to elimination needs and an absolute prohibition of pit bulls. Check with individual airlines before seeking to travel with a service or assistance animal.
The National Association of REALTORS® recently reported that an Arizona agent held an open house, where a comfort dog peed on the carpet twice. Because the agent did not get the handler’s contact information, the homeowners sought the carpet cleaning bill from the agent. All the more reason to be sure that everyone entering your open house must sign in with contact information!
Complaints for failure to accommodate service animals may come from the U.S. Department of Justice, Civil Rights Division, Arizona Attorney General’s Office, Civil Rights Division, HUD, or offended individuals.
