Summary of Law Related to Reasonable Accommodations for Animals

There are two anti-discrimination laws applicable to obligations of housing providers which are related to protecting people who suffer from disabilities-the Federal Fair Housing Act and New Jersey’s Law Against Discrimination. In addition, the federal government enforces the ADA which is applicable to “public accommodations”. “Public accommodations” do not include apartments or mobile home spaces but rental complex common areas open to the public would be included. Not all of the ADA rules on this subject matter are applicable to housing but most are.

Both the federal and state legislative scheme have the same general rules related to disability related accommodations- a landlord should not ask about disabilities but if a tenant wants a landlord to engage in any type of forbearance as it relates to lease or rule enforcement in order to afford a “reasonable accommodation” for the tenant’s disability the following rules apply:

The landlord can ask for reliable written verification of the disability if it is not readily apparent (e.g. bilateral leg amputation);

The landlord can perform an analysis of the relationship between the disability and the accommodation requested-they must be related;

The accommodation must be “reasonable”. If it is actually too expensive (no-really-prohibitively expensive not just “inconveniently” expensive) for the landlord to comply with the requested accommodation there may be a way to avoid compliance. This is a very detailed financial analysis and certainly a landlord is not excused from complying with this law merely because it costs something to do so. If it costs thousands of dollars that may not be enough.

The issue we are concerned about relates to relaxing a landlord’s pet prohibitions or pet limitations (e.g., weight, breed) where a tenant requests the need for a pet as a reasonable accommodation for a disability.

This is the New Jersey Law Against Discrimination Provisions related to the issue:

“Service dog” means any dog individually trained to the requirements of a person with a disability including, but not limited to minimal protection work, rescue work, pulling a wheelchair or retrieving dropped items. This term shall include a “seizure dog” trained to alert or otherwise assist persons subject to epilepsy or other seizure disorders.

NJSA10:5-4 (Definitions) (federal regulations contain a similar provision related to “service dogs” which makes it clear service dogs are different from “companion animals” or “assistance animals”).

The same statutory scheme also recognizes that landlords can’t prohibit public safety related animals (police dogs and fire assistance dogs that live with policemen or firemen).

There are no specific reported cases either from New Jersey courts or federal district courts located in New Jersey which deal with the issue of service dogs or companion pets other than one Appellate Division decision which recognized that a dog which actually helped pull a paraplegic in his wheelchair qualified as a “companion” or “assistance” animal and should have been permitted by the tenant’s landlord.

Most of the time landlords will not be dealing with “service dogs,” but will be dealing with accommodations for “assistance” or “companion” animals.”

Federal cases outside of New Jersey have ruled that accommodations required for disabled persons under the Fair Housing Act are not limited to service animals. That obligation should extend to “persons with disabilities who need animals in housing as a reasonable accommodation for a wide variety of purposes.” Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D.Ohio 2009).

On April 25, 2013 HUD published a memo offering its opinion concerning service animals and assistance animals (companion animals). This document is not the law but case law makes clear that an enforcing agency’s interpretation of the law is entitled to certain deference by reviewing courts.

An assistance or companion animal is not a pet. If all an animal does is provide emotional support to a person with a psychological disability who needs emotional support then the animal qualifies for protection under the law-more precisely-factual justification exists for a landlord to be required to make a reasonable accommodation and relax any of its lease provisions or rules which might interfere with the tenant harboring that animal.

The law does not require an “assistance” or “companion” animal-as opposed to a “service dog”-to be individually trained or certified. “Companion” or “assistance” animals cannot be certified-legitimately. There are many people on the Internet selling phony “certifications” to disabled persons for “companion” or “assistance” animals but these are just phony schemes-they have no legitimacy and are not required under law. (In one instance, an Internet company sells a “certification card” which can be obtained merely by paying their requested compensation and e-mailing them a picture of your companion animal. They respond by sending a “certification card” with the animal’s picture in it. Under these circumstances the only qualifications to get that certification is that the animal exists).

Other animals can fulfill the role of assistance animals, not just dogs.

HUD recognizes that a request to harbor a specific animal may be denied if the specific assistance animal poses a direct threat to health or safety of others that cannot be reduced or eliminated by another reasonable accommodation or if the specific assistance animal will cause substantial physical damage to the property. “Breed, size, and weight limitations may not be applied to an assistance animal”.

Granting the reasonable accommodation cannot be conditioned upon the payment of a fee or deposit or other terms and conditions applied to other residents with pets.

After the issuance of this HUD memo, my office has seen an increase in the number of tenants who are learning about this subject matter on the Internet-no doubt spurred on in part by the companies who are bilking persons who claim to be disabled (legitimately or otherwise) for phony “assistance animal” certifications. They purchase a “phony” certification and then protest that the landlord’s enforcement of a pet prohibition or limitation (breed, size, etc.) is against the law. We suspect that many of these tenants are not truly disabled but are just using this law to compel a landlord to forbear from enforcing its pet restrictions. As a housing provider you have to ask yourself how much this issue is worth pursuing. I represent many landlords who stand ready to fight aggressively because the proliferation of pets causes a problem just with their being on the property, or because their presence causes other tenants to attempt to take advantage of these exceptions (or just ignore the prohibitions entirely). Many are concerned about the risks associated with certain breeds. Despite HUD’s position that there is nothing wrong with a comfort Pitbull, German Shepherd, Doberman Pinscher, or any of the other breeds recognized on the insurance industry’s “most dangerous” list (compiled based upon the number of personal injuries caused by certain breeds), many landlords have legitimate concerns about these breeds as it relates to the safety of other residents and their children.

Some landlords don’t object to these types of breeds or any animals. Some landlords have concluded that the risks posed by fair housing laws (see comment on outrageous jury verdicts below) are not worth fighting over. Others stand ready to take on tenants who are not legitimately disabled or who will want to challenge the breed limitations which will require that they challenge the “guidance” in the HUD memo in court.

Whatever your approach will be, if you have pet restrictions in your documents it makes sense to take advantage of the minimal requirements that are recognized by HUD in these cases-when a tenant raises the issue, a request for a reliable written verification of the disability is permitted and should be made by a landlord. This inquiry can be pursued-aggressively or not. In addition, a landlord should be aware that there are different definitions for “disability” under the federal and state schemes. The federal scheme has a definition of disability which is narrower in scope than the New Jersey definition. This might prove critical since the HUD memo referred to above is only applicable to the federal law. Where the federal disability law is not applicable, there is no argument that the HUD memo is entitled to deferential treatment as it relates to the interpretation of New Jersey’s law against discrimination.

(While technically speaking, this same deferential approach should not apply if a judge is being asked to interpret New Jersey’s Law Against Discrimination, one very informed retired jurist has advised me that it is his opinion that state court judges will give deference to this HUD memo even when applying New Jersey’s Law Against Discrimination).

Documenting the file by securing reliable written verification of the existence of the disability should be done, if for no other reason, to deal with insurance issues. Repeated claims against the landlord’s insurance coverage resulting from dog bites by dogs on the “dangerous breed” list may result in increased premiums and/or a discontinuation of coverage. Documentation related to the fact that the landlord has no option may be of assistance as it relates to his or her relationship with the insurance carrier. That said, be careful who you share a tenant’s medical information with.

Once an animal is allowed, in my opinion an assistance animal addendum is allowable which will require proof of immunization, compliance with all licensing requirements, insurance coverage for personal injury and property damage. A landlord can also and should impose other behavioral controls (must be on a leash at all times, must never be left outside unattended, etc.) to minimize the adverse impact of the animal on other residents.

The risk under either a Federal or State anti-discrimination law violation prosecution is the following:

There could be heavy fines. For a first offense the limit is $10,000;

The plaintiff can sue for whatever actual damages he or she sustains-arguably loss of the house in the case of a mobile home park eviction;

The plaintiff can ask for the jury to award damages for emotional or psychological injuries and he does not need an expert witness (psychologist) to assert and prove this claim (recent case law out of the Appellate Division in New Jersey has sustained jury awards for emotional injuries proven without expert psychological testimony for race based employment discrimination in the amount of $600,000 and $800,000!!!! respectively); attorney’s fees and costs.

By Christopher J. Hanlon, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Landlord-Tenant Attorney

If you would like to schedule and appointment to discuss you landlord matter, please contact Christopher J. Hanlon, Esq. at chanlon@hnlawfirm.com or Fredrick P. Niemann, Esq. at fniemann@hnlawfirm.com. They can also be reached toll-free at (855) 376-5291.