Multi-Family Housing | Single Family Residential

Can a Landlord ask for Proof of a Dog’s ADA Service Animal Status?

Service dogs[1] aid people with disabilities so that they can fully participate in daily life routines and activities.  Dogs can be trained to perform many significant tasks to assist people with disabilities. These service dogs offer support to people with physical or mental disabilities including those who are visually impaired, deaf or hard of hearing. When it comes to housing, landlords and property managers generally enforce pet policies for the properties they rent. The Americans with Disabilities Act of 1990 (ADA)[2] prohibits discrimination in public accommodations based on disability. Fair Housing Laws may require property owners to provide reasonable accommodations for tenants with disabilities, and this includes service dogs.[3] Since a service dog is not considered a “pet,” they are not subject to common pet rules and a landlord may not necessarily ask for documented proof.

The ADA defines a service animal in Title II and Title III as a dog trained to do work or perform tasks benefitting a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.[4] Examples of such work or tasks include guiding people with visual impairment, alerting people who are deaf or hard of hearing, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties.[5] Service animals are not required to be professionally trained or have any certification or identification, though they do require some formal or informal training to perform their service animal task(s).[6] While a landlord is not allowed to request any documentation to prove that a dog is a service animal, a landlord can ask whether a dog is a service animal required because of a disability and what work or task the dog has been trained to perform.[7]

According to the United States Department of Housing and Urban Development (HUD),[8] an emotional support animal (ESA) is not a pet, but includes any animal providing emotional support to a person with a disability.[9] Unlike a service animal, an ESA is not trained to work or perform certain tasks, but provides emotional support alleviating one or more symptoms or effects of a person’s disability.[10] The most common type of ESA is a dog; however, a wide range of other species of animals may fit the definition of an ESA.

The Fair Housing Act (FHA) prohibits discrimination in housing access based on a person’s disability.[11] The FHA includes most housing types, with limited exceptions,[12] and requires a landlord or homeowner’s association to provide reasonable accommodations to a person with a disability to ensure he or she has an equal opportunity to enjoy and use a residence. Therefore, a housing provider must offer reasonable accommodations to a service animal meeting the ADA definition to ensure that a person with a disability has an equal opportunity to enjoy and use the residence. The landlord may not inquire about the nature of the tenant’s disability, medical records, or ask the service animal to demonstrate their task. A person with a service animal in his or her dwelling is liable for any damage to the dwelling or to another person on the premises caused by the animal, and a housing provider may request proof that the service animal complies with vaccination requirements.[13]

Similar to the limitations under the ADA, under FHA a housing provider evaluating a reasonable accommodation request relating to a service animal may not ask a housing applicant about the existence, nature, or extent of his or her disability; however, a housing provider may ask an individual with a disability to provide documentation enabling the provider to properly review an accommodation request, including documentation certifying that: (1) the tenant or a member of his or her family is a person with a disability; (2) the need for a service animal to assist the person with that specific disability; and (3) the person with that disability is actually assisted by the service animal.[14]

Section 413.08 of the Florida Statutes lists the rights and responsibilities of a person with a disability relating to: using a service animal; discrimination in public employment; public accommodations; and housing accommodations.[15] Florida law mirrors ADA and FHA requirements relating to service animals, but specifically excludes ESAs in its housing accommodation requirements for a person with a disability. Thus, Florida law treats a service animal separately than an emotional support animal (ESA). However, HUD has explained that housing providers should accommodate reasonable requests for both service animals and ESAs.

Many people with disabilities use a service animal to participate fully in everyday life. If a tenant has a disability, the tenant can request reasonable accommodations to ensure access and enjoyment of the residence. Reasonable accommodations may include changes or exceptions in property rules, policies, or procedures so that a person with a disability can live in and use a housing unit.

References:

[1] NOTE: This article frequently refers to a service animal as a “dog” but the ADA does not restrict service animals to canines. Notably, the ADA has recently recognized miniature horses as capable of meeting the service animal definition. [2] 42 U.S.C. §12101, et seq. [3] 42 U.S.C. § 3601, et seq. [4] 28 C.F.R. §§ 35.104 and 36.104. [5] See, 28 C.F.R. 36.302(c)(6) (2020). [6] U.S. Department of Justice, Civil Rights Division, Disability Rights Section. ADA Service Dog Laws (2020). [7]Id. [8] HUD is the Federal agency responsible for national policy and programs addressing America’s housing needs, improving and developing the Nation’s communities, and enforcing fair housing laws, including violations of the Fair Housing Act. HUD.GOV, Questions and Answers about HUD, https://www.hud.gov/about/qaintro (last visited Aug 27, 2020). [9] U.S. Department of Housing and Urban Development (HUD), FEHO Notice: FHEO-2013-01, (Apr. 25, 2013), https://www.hud.gov/sites/documents/SERVANIMALS_NTCFHEO2013-01.PDF (last visited Aug. 27, 2020). [10] Id. [11] 42 U.S.C. § 3601, et seq. [12] In limited circumstances, the FHA exempts: owner occupied buildings with no more than four units; single-family houses sold or rented by an owner without using an agent; and housing operated by religious organizations and private clubs limiting occupancy to members; HUD.GOV, Housing Discrimination under the Fair Housing Act, https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_overview#_What_Types_of (last visited Aug. 27, 2020) [13] ADA National Network, Service Animals and Emotional Support Animals Where are they allowed and under what conditions https://adata.org/publication/service-animals-booklet (last visited Aug. 27, 2020). [14] Id. [15] See, Fla. Stat. § 413.08 (2020).

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