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Home / Expert Opinion / Legal Bytes: Landlords, no-pet clauses and emotional support animals

Legal Bytes: Landlords, no-pet clauses and emotional support animals

Jaime M. Cain

Jaime M. Cain

I am often asked for advice by landlords who own a single apartment and property management groups who own multifamily apartment buildings alike, whether they need to accommodate a tenant’s request to have an emotional support animal in light of a no-pet policy at the premise.

This has truly become a hot topic in landlord tenant law, and the answer depends on the type of premise that is being rented and the documentation provided to the landlord from the tenant.

First, what is an emotional support animal? An emotional support animal is not a pet, but rather is a companion animal that provides therapeutic benefit to an individual diagnosed with a mental or psychiatric disability. However, unlike the definition of a “service animal”, an emotional support animal does not have to be certified or licensed for a specific purpose, Bronk v. Ineichen, 54 F.3d 425 (7th  Cir. 1995).

In addition, there is no requirement that an emotional support animal have any training, Janush v, Charities Housing Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Cal. 2000). An emotional support animal is treated as an assistive aid, and as such, under the Fair Housing Amendments Act of 1988, an emotional support animal is viewed as a “reasonable accommodation” in a premise that has a no pet policy.

The Fair Housing Act applies to all housing transactions with a few exceptions. Housing properties including leased or rented apartments; houses or condominiums that are sold, leased or rented; rooming houses; cooperatives; temporary shelters and mobile home parks are covered. The FHA does not apply to:

  • An owner who owns four units or less and lives in one      unit; or
  • A private individual owner who does not own more than      three single-family houses, if the owner does not use the services of a      broker, and if the owner does not use discriminatory advertising, and if      the owner has not participated in three or more rental or sales transactions      in a one-year period.

 

While courts generally will enforce a lease that contains a no-pet policy, under the FHA, it is discriminatory to “refuse to make a reasonable accommodation in rules, policies, practices, or services, when such accommodation may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling” 42 U.S.C. §3604(f)(3)(B).  As long as the accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation, Id.

If a court finds that a reasonable accommodation should have been made but was not offered, the court may award compensatory and/or punitive damages, attorneys’ fees and appropriate injunctive relief, Mozaffari v. New York State Division of Human Rights, 63 A.D.3d 643, 881 N.Y.S.2d 437 (1st Dept. 2009); see also, 42 U.S.C.A. §3613(c).

In New York, when a tenant who wishes to have an emotional support animal is residing or looking to reside at a premise with a no-pet policy, they must prove the following:

1)      He or she has a disability.

2)      He or she is otherwise qualified to reside at the premise.

3)      It is necessary to have the pet in order to use and enjoy the premise. And

4)      Reasonable accommodations can be made to allow the resident to maintain the pet, Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879, 879 N.Y.S. 2d 197 (2d Dept. 2009).

For the purposes of requiring an emotional support animal, a person is disabled if he or she is substantially limited in a major life activity. Simply having a diagnosed mental or psychiatric illness is not enough.  Some examples of major life activities include caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing and learning, 28 C.F.R. § 35.104(2); 29 C.F.R. § 1630.2(i).

The critical evaluation that must be made in order to justify the need for a reasonable accommodation  is whether a tenant can prove not only that he or she has a disability but be able to establish the nexus between his or her ability to function and the need for the animal. To satisfy this requirement, the tenant must provide a note from his or her doctor or therapist that documents the tenant’s disability and establishes that the companion animal helps with the tenant’s ability to cope with the symptoms of the illness, Crossroads Apartments v. LeBoo, 578 N.Y.S.2d 1004 (City Ct. Rochester, N.Y. 1991).

While a tenant will have to disclose some facts about his or her disability, it does not require the tenant to provide a detailed description of the disability or require a detailed medical history. An example of the need for a companion animal would be a tenant suffering from major depression who finds interactions with others difficult, and so the companion animal prevents the tenant from harming oneself due to the overwhelming feeling of loneliness or isolation.

As for those pet deposits and monthly pet fees landlords like to put in leases, it has been perceived in the legal industry that requiring such fees in advance or on an ongoing basis goes against the purpose of the law and a landlord should not assume at the onset that the animal will cause damage to the premise. Therefore, landlords should document the condition of the premise at move in and then do a walk through at the end of the tenancy and assess any damages then.

However, even when a landlord is required to make a reasonable accommodation to its no-pet policy, a landlord is not without recourse in the event the animal becomes a nuisance or is deemed to be a threat to the health or safety of other tenants. A nuisance is a continuous course of conduct that interferes with your neighbors’ ability to live in their home safely and comfortably, Domen Holding Co. v. Aranovich, 753 N.Y.S.2d 57 (1st Dept. 2003).

Examples include continuous barking, aggressive behavior, or urinating in public areas of the building. A tenant who neglects to clean up after the animal may be evicted for that specific violation.  Lastly, a landlord is absolutely allowed to seek veterinary records to enforce that the animal has all required inoculations and follow any local rules like lease laws.

Jaime M. Cain is a senior associate at Boylan Code concentrating her practice on general Real Estate and Real Estate litigation. Contact Jaime at (585) 232-5300 or jcain@boylancode.com.

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