RPOA – Michigan's Largest REIA and Landlord Association

Housing providers must make reasonable accommodations for persons with a disability. One common request a prospective tenant/tenant makes is for a reasonable accommodation as it relates to the housing provider’s pet or no animal policy…so that the prospective tenant/tenant will be allowed to have and use an assistance animal in the rental unit.

The Fair Housing Act (FHA) requires housing providers to modify or make exceptions to their policies governing animals—in other words, make reasonable accommodations.

A reasonable accommodation may involve more than one assistance animal. For example, a disabled person my need a service animal and a support animal (both defined below) or two disabled individuals may be living in the same unit, each requiring one or more service or support animals.

Reasonable accommodations include accommodations made for housing provider rules, policies (such as a pet policy), practices, and/or procedures.

Reasonable accommodations apply to prospective/new tenants or existing tenants with a disability that originated after occupancy of the unit. A tenant may request a reasonable accommodation before or after obtaining an assistance animal. A tenant may also request a reasonable accommodation after a housing provider has served a termination notice due to an animal that is in violation of the housing provider’s pet/animal policy.

There are two types of assistance animals:

1. Service Animals. A dog or miniature horse that is individually trained to perform tasks or do work for the benefit of a person with a disability. The tasks or work the animal does must be directly related to the person’s disability. A service animal is defined within the American Disabilities Act (ADA). The ADA also requires reasonable accommodation for service animals.
2. Other Animals (AKA Support Animals). Trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. The FHA requires reasonable accommodation for support animals—the ADA does not.

 
The guidance document provided by HUD (FHEO-2020-01) for “assessing a person’s request to have an assistance animal as a reasonable accommodation under the Fair Housing Act” can be used to determine if a reasonable accommodation is legitimate and be granted. This document recommends the following method for determining if an animal is a service or support animal and if a reasonable accommodation should be granted.

A series of questions, as follows, should be used to determine if an animal is a service or support animal and to determine if a reasonable accommodation is required:

1. Is the animal a dog or miniature horse?

 
If yes, proceed to question 2.

If no, the animal is not a service animal but may be a support animal. Proceed to question 3.

2. Is it readily apparent that the dog or miniature horse is trained to do work or perform tasks for the benefit of an individual with a disability? (“Readily apparent” means when it is observed that the dog/miniature horse is guiding an individual who is blind or has low vision; pulling a wheelchair; or providing assistance with stability or balance to an individual with an observable mobility disability.)

 
If yes, further inquiries are unnecessary and inappropriate because the animal is a service animal.

If no, proceed to question 3.

3. In the case where it is not readily apparent that the dog or miniature horse is a service animal, the housing provider may ask the following questions:

 
A. Is the animal required because of a disability?

If yes, continue with the follow up question B.

If no, the animal is not a service animal but may be a support animal. Continue with question 4.

B. What work or task has the animal been trained to perform?

If work/task is identified, the housing provider must grant the request.

If work/task is not identified, the animal is not a service animal but may be a support animal. Continue with question 4.

4. Did the individual request a reasonable accommodation to keep an animal in connection with a physical and/or mental impairment or disability? (A request for an accommodation may be written or oral and may be made by the prospective tenant/tenant or another person on behalf of the individual with the impairment or disability, including a person legally residing in the unit with the individual or a legal guardian or authorized representative.)

 
If yes, continue with question 5.

If no, the housing provide is not required to grant a reasonable accommodation that has not be requested.

5. Does the person who will be residing in the unit have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability? (Some impairments/disabilities are observable, e.g. blindness, deafness, mobility limitations, certain intellectual impairments while others are not, such as those that my include impairments that form the basis for a request for a support animal.)

 
If yes, go to question 7.

If no, go to question 6.

6. Has the person requesting the accommodation provided documentation with information that reasonably supports that the person seeking the accommodation has a disability? (See “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing” below.)

 
If yes, go to question 7.

If no, the housing provider does not have to grant the accommodation. (A reasonable opportunity must be allowed for the person requesting the accommodation to obtain the documentation.)

7. Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?

 
If yes, go to question 8.

If no, the housing provider does not have to grant the accommodation. (A reasonable opportunity must be allowed for the person requesting the accommodation to obtain the documentation.)

8. Is the animal commonly kept in a household (including dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, or other small, domesticated animals that have traditionally been kept in households for pleasure and for non-commercial purposes)?

 
If yes, the reasonable accommodation should be provided.

If no, the reasonable accommodation need not be provided unless the individual requesting the accommodation can demonstrate a disability-related therapeutic need for the specific animal or the specific type of animal. Documentation my be requested to support the claim. A monkey may be an acceptable unique animal. (See “Unique Animals” below.)

As an overview of the above questions, if a disability requires the use of a service animal (dog or miniature horse) and the housing provider has determined that it is readily apparent that the service animal is needed (see questions 1 and 2 above), no additional documentation should be requested. However, if the need for a service animal is not apparent, proceed with question 3. If the prospective tenant/tenant states that they have the animal(s) due to a disability and they can state the work/task the animal provides, no additional documentation should be requested. If none of these conditions apply, the animal is not a service animal but a support animal and the housing provider may ask the additional questions (4-8 above) and ask for documentation of the need for the animal.

Guidance on Documenting an Individual’s Need for Assistance Animals in Housing

 
This section provides the best practices for documenting an individual’s need for assistance animals in housing.

Things the housing provider cannot do:

• Ask for the diagnosis for the disability
• Require a form that the health care professional must use
• Require that documents provided by the health care professional be notarized
• Require that documents provided by the health care professional include language that the statements made on the form are done so under the penalty of perjury
• Require that the documents provide detailed information about as person’s physical or mental impairments

 
According to HUD in its memo (FHEO-2013-01) a landlord may require that documentation be provided by a physician, psychiatrist, social worker, or other mental health professional. At this time, it seems like HUD does not care where the professional is located (e.g. in the U.S. or outside of the country) or whether or not the tenant has a relationship with that professional strictly online or in person at a medical facility/office.

Documents provided by health care professionals should include the following:

General information:

• The patient’s name
• Whether the health care professional has a professional relationship with that patient/client involving the provision of health care or disability-related services
• The type of animal(s) for which the reasonable accommodation is sought (i.e., dog, cat, bird, rabbit, hamster, gerbil, other rodent, fish, turtle, other specified type of domesticated animal, or other specified unique animal)

 
Disability-related information:

• Whether the patient has a physical or mental impairment
• Whether the patient’s impairment(s) substantially limits at least one major life activity or major bodily function
• Whether the patient needs the animal(s) (because it does work, provides assistance, or performs at least one task that benefits the patient because of his or her disability, or because it provides therapeutic emotional support to alleviate a symptom or effect of the disability of the patient/client, and not merely as a pet)

 
Additionally, if the animal is not a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes, it may be helpful for patients to ask health care professionals to provide the following additional information:

• The date of the last consultation with the patient
• Any unique circumstances justifying the patient’s need for the particular animal (if already owned or identified by the individual) or particular type of animal(s)
• Whether the health care professional has reliable information about this specific animal or whether they specifically recommended this type of animal

 
Date and signature of the health care professional:

• It is recommended that the health care professional sign and date the document provided, but it is not required.

Guest’s Service or Support Animals

 
There is nothing in the ADA or the FHA that addresses whether or not a housing provider must allow a guest visiting or staying with a tenant to bring a service or support animal onto the property or into the unit. However, the Michigan Department of Civil Rights claims that a guest should be granted the same accommodation as the tenant. Whether or not the housing provider can ask for the same evidence/documentation for the guest’s animal(s) is not made clear. Some reference to the right for a guest to bring a service or support animal onto or into the property is upheld by the right of the tenant to enjoy the rental unit as their home. There are no court cases known that have addressed this situation that have not been settled out of court.

Unique Animals

 
As noted under question 8 above, an animal that is not an animal commonly kept in a household, does not necessarily eliminate the possibility that the animal is support animal.  Monkeys can provide certain support for some individuals with physical disabilities. However, unique animals must be allowed under federal, state and/or local law. Generally speaking, farm animals (excluding chickens in some communities) are not allowed in residential areas. It is best to check with the locality on codes that specify animals not allowed.

Dangerous Breeds

 
According to HUD, “[b]reed, size, and weight limitations may not be applied to an assistance animal.” (FHEO Notice: FHEO-2013-01 at page 3). Instead, a housing provider may only determine if the specific assistance animal in question poses a direct threat to the health and safety of others. This determination of a “direct threat” must be based on “individualized assessment that relies on objective evidence about the specific animal’s actual conduct.” (FHEO Notice: FHEO-2013-01 at page 3). It may not be based on fears about a certain type of animal or evidence from damage done by previous animals of the same type. For example, if a dog has been previously declared a dangerous dog, this may indicate that the dog poses a direct threat in an individualized assessment. However, breed alone will not result in this determination. This reasoning by HUD has been upheld in at least two U.S. district courts, which can be accessed here.

An issue sometimes arises where a housing provider/landlord’s insurance company has restrictions on breeds of dogs in the insured’s policy. The insurance company may label certain breeds of dogs as “dangerous” in the policy. A memorandum issued by the Office of Fair Housing and Equal Opportunity (FHEO) issued some guidelines to directors on how to handle this issue in cases of discrimination. The memo reiterates that each reasonable accommodation determination must be made on a case-by-case basis. An accommodation is considered unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations. The memo then states:

If a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider.

This claim must then be substantiated with the insurance company directly and comparable insurance coverage must be considered. According to the memo, if the insurance company has a policy that does not have an exception for assistance animal, an investigation may be launched against the insurance company for potential disability discrimination. More information on this particular issue can be found here.

Pets

 
Animals that are not service animals or support animals are pets.

The housing provider may charge a fee or deposit, subject to state and local law, for pets—but not for service or support animals.

Disclosure: This Knowledge Base article is accurate as of the last update. Laws and policies are subject to change. If you have any questions, please call the office. Click here for contact information.