Can My Landlord Keep Me From Having A Pet? Not if it provides emotional support and you are disabled

A landlord cannot prevent a disable tenant from having a emotional support animal No pet policies are meant to protect homeowners from irresponsible pet owners who allow untrained pets to ruin housing, often at the landlord’s expense. However, some people do not simply keep pets for the joy of it, but need them to actively play an assistive role in their life. Society has recognized the benefits of animals for the physically disabled for a long time, but only recently have those same benefits been widely recognized in helping disabled tenants.

If you have an emotional support animal that your landlord has requested you not keep at your apartment, please get in contact today.

Medical professionals understand that animals can provide emotional support to the handicapped that can help alleviate stress, decrease depression, and encourage further socialization in the patient. Unfortunately, many disabled people believe they cannot receive this beneficial animal companionship due to “no pets allowed” policies where they live. The fear of causing trouble with the landlord threatens to overcome their desire to connect with another living being.

Thankfully, the federal statutes that provide protection for disabled people against housing discrimination apply to this delicate situation. After several key cases, federal statutes have come to the conclusion that emotional support animals are indeed a reasonable accommodation for disabled tenants. While some landlords still try to deny valuable accommodations to those in need, the law is strongly in the favor of disabled residents. Educating disabled tenants of their rights can help them realize that this useful treatment is available to them, no matter where they live. Any landlord that insists on denying the handicapped this right is in violation of federal law.

Rehabilitation Act of 1973 Gives Disabled Tenants New Rights

The first step toward providing protection for disabled residents in housing accommodation occurred with the introduction of Sec. 504 in the Rehabilitation Act of 1973. This important statute showed that America was ready to fight against policies that discriminated against the then very oppressed handicapped citizens of the Untied States.

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

Two further actions were needed before the laws regarding “no pet policies” and the handicapped were made clear. First, the United States Court of Appeals for the Fifth Circuit finally decided, in 1981, that the waiving of “no pet policies” were to be considered a reasonable accommodation under the statutes of the Rehabilitation Act of 1973.

While this step was important, the laws set out under the Rehabilitation Act of 1973 held many gaps regarding language about housing discrimination that caused legal decisions to become difficult. Finally in 1988, the Department of Housing and Urban Development (HUD) was able to work to fill in these gaps in language so that future decisions could be made clear regarding the housing accommodations required for handicapped people.

Defining and Presenting your Handicap

Sec. 504, as well as the Federal Fair Housing Amendments Act of 1988 (FHAA), requires that a tenant must have a qualifying disability to be able to waive the “no pet policies” of their landlords. Three requirements have to be met to qualify a person as mentally handicapped:

  • “A physical or mental impairment which substantially limits one or more of such person’s major life activities”
  • “A record of such an impairment”
  • “Being regarded as having such an impairment”

Language within HUD regulations allows the definition of what qualifies as a mentally handicapped person to be even broader, stating that a mental disorder can include “mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities.” In addition to this, the statutes and regulations of HUD policies clearly point out that the scope of “handicap” should not be, and cannot be, limited to solely these definitions. Thankfully, this helps those in need of federal protection to obtain it in a simpler manner. One reason this is written as such is because Congress realized that broad definitions of “handicap” would protect affected individuals in many areas of life; not just their ability to own a pet for emotional support.

In order to successfully file to prove a case of housing discrimination under Sec. 504 of FHAA, the client’s situation must be able to meet four criteria:

  • They must suffer from a handicap.
  • Landlord either knew about the handicap or was reasonably expected to know about it.
  • The requested accommodations were necessary for the tenant to have an equal opportunity to use and enjoy the living space.
  • The Landlord refused to provide the requested accommodations.

When applying this to waiving “no pet policies” for a mentally disabled tenant, it must be proven that the accommodation of their emotional support animal affects their ability to function, by lessening the overall impact of their disability upon their daily life. However, courts have rejected any concrete definitions of what is considered a reasonable accommodation, so landlords will still try to combat these federal laws from time to time. What landlords usually focus on is the requirement that an “accommodation must pass a cost-benefit balancing test that takes both parties’ needs into account.”

Important Cases

Thankfully, the Majors v. Housing Authority of DeKalb Georgia provided a ruling that demonstrates that housing authorities’ failure to wave no pet policies to accommodate mentally disabled tenants did, in fact, amount to discrimination. In this case, an elderly woman, Ms. Majors, had her lease terminated because she had a small dog in the living space to help her with her long history of psychological problems. Courts ruled that the housing authority’s actions illegally deprived Ms. Majors of reasonable accommodations by taking this action. Courts determined that the dog was a reasonable accommodation due to three factors:

  • Majors could only fully enjoy the benefits of the housing program if the needed accommodations for her disability were met. (The dog, in this case.)
  • Language stated that the housing authority could “easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires the companionship of a dog.”
  • Courts determined that the no pet policy was not a fundamental part of the program, and could thus be overrode.

The Majors case led to further cases that cemented the fact that emotional support animals were a reasonable accommodation to people with mental disabilities. One of the more famous instances of such a case was Whittier Terrace Associates v. Hampshire, in which a woman kept a cat in a no pet policy rental house due to the effects of her psychiatric disability. Ultimately, both of these cases came down to the finding that mentally disabled tenants can only truly experience the full benefits of their living space if they are given proper accommodations, and that emotional support animals provide a reasonable enough accommodation to override the non-fundamental no pet policies of housing authorities.

Additionally, courts have frequently determined that emotional support animals do not have to be officially certified or trained to qualify as a reasonable accommodation. Instead, they put the focus solely upon whether a fact-specific analysis can determine whether or not the animal truly lessens the effects of a person’s disability. Several cases helped set this precedent, including Green v. Housing Authority of Clackamas County and Bronk v. Inichen.

Exceptions

While most mentally disabled people will be able to override no pet policies easily with a waiver, there still exist a few exceptions that may keep them from being able to own an emotional support animal. Essentially, it comes down to two things:

  • If an animal fundamentally alters the nature of a housing program.
  • If the landlord suffers an undue financial or administrative burden.

Basically, any exception is made to keep any undue burden from falling on the landlords or fellow tenants due to accommodations provided to the mentally disabled tenant. For example, if the presence of the emotional companion animal were to present a safety or health hazard to other people that live on the property, the disabled tenant would no longer fall under the protection of the statutes that define the emotional support animal as a reasonable accommodation. Thankfully, simple speculation of an animal providing a safety threat will not cut it when a landlord is attempting to block a waiver of a no pet policy. To effectively block the tenant’s request due to safety concerns, objective evidence must be provided that show the adverse affects the animal’s presence has caused.

Finally, if a disabled tenant is unable to follow or perform other rules regarding animals that apply to all tenants, the landlord may be able to reject their requested accommodations. For example, if the tenant in question cannot clean up after the animal’s waste in common areas, the other tenants are put at risk of potential safety and health hazards.

Conclusion

Overall, there is little to no reason a landlord cannot easily provide the accommodations necessary for a disabled tenant to keep an emotional support pet. Aside from the few examples listed above, no undue burdens will affect a landlord’s ability to perform proper upkeep on a living space due to the presence of an emotional support animal.

If you have an emotional support animal that your landlord has requested you not keep at your apartment, please get in contact today.

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Arthur Hardy-Doubleday

About Arthur Hardy-Doubleday

Arthur Hardy-Doubleday practices law in Cambridge and Martha's Vineyard Massachusetts. He works in the areas of Real Estate, Personal Injury, and Consumer Protection Law. When not practicing law, Arthur enjoys sailing, hanging out with friends on the beach, and waking his dog "Ridiculous."