Fair housing: What landlords should know about service animals

Authored by: Brett M. Woodburn, Esq., and Joseph S. Swartz, Esq.

As Fair Housing Month comes to an end, one topic comes to mind that seems to cause more frustration for property managers than any other in the residential setting – pets! Whether these are Hotline calls or conversations with clients, pets, pet deposits, pet addenda, and prohibiting pets is a common theme.

Pennsylvania law prohibits an owner from refusing to rent to or otherwise withhold housing from, (1) an individual who has a handicap or disability; (2) an individual who is dependent upon a guide or support animal; or (3) an individual who handles or trains guide or support animals. In the event that a tenant (or prospective tenant) requests a reasonable accommodation because of their dependency upon, handling or training guide or support animals, owners must comply. What does this mean?

Under Pennsylvania law, an individual has a handicap or disability if they have a physical or mental impairment that limits one or more major activities. A prospective tenant may have the services of a companion animal, and may seek an “accommodation” in order to rent property that you have available. If your landlord has a strict “no pet” policy, can you deny housing to the tenant with a support animal? NO! If your landlord requires a pet deposit, can you collect it in this instance? NO! If your landlord adds an additional amount to the monthly rent to account for the additional wear and tear that an animal brings to a living environment, can you charge that additional rent? NO!

Generally, landlords and property managers recognize and accept that a ‘no pet policy’ does not apply to handicapped or disabled tenants. However, both landlords and property managers have difficulty assimilating why pet deposits, pet rents or other additional fees cannot be charged. One way to reconcile the Fair Housing requirements with day-to-day expectations is to accept that a guide or support animal is not a pet. Rather, consider the guide or support animal to be an extension of the individual, rather than a separate living, breathing creature and you will be on the right path.

Landlords and property managers oftentimes do not see a distinction between the tenant who pays a pet fee or additional rent to have their Labrador Retriever from the blind tenant who has a seeing-eye dog, or from the deaf tenant who has a service animal to assist with recognizing everyday sounds, from the mentally ill tenant who has a support animal to assist them with coping with day-to-day events. Landlords and property managers cannot understand why charging a pet fee or additional rent to everyone who has an animal is considered to be discriminatory when the tenant is dependent upon the guide or support animal. Therein lies the answer – the additional cost is being assessed because the tenant suffers from a handicap or a disability. Do you charge an additional fee for a tenant who is wheelchair dependent?

Courts have determined that it is a reasonable accommodation to forego charging a pet fee when a tenant is dependent upon the services of a guide or support animal. Courts have determined that it is a reasonable accommodation to forego increasing rent when the increase would be due to the presence of an animal, if that animal is a guide or support animal.  Courts have determined that it is a reasonable accommodation to waive a ‘no pet policy’ for a tenant who is dependent upon a guide or support animal. The same accommodations also apply to individuals who handle or train guide and support animals.

We also field questions about what conditions justify guide and support animals, and what types of animals are “allowed”. In Pennsylvania, if an individual suffers from a handicap or disability, then landlords and property managers are expected to make reasonable accommodations. How is one to know if a tenant has a handicap or a disability? A note from a health care provider is oftentimes sufficient to establish that the individual has been diagnosed with, or is suffering from a handicap or disability. How is one to know if a guide or support animal is appropriate treatment? A note from a health care provider should suffice in most instances, as well.

What can a property manager or landlord do if they question the legitimacy of the claimed handicap or disability; what can be done if the legitimacy of a support animal is raised? These are difficult questions to answer and difficult paths to follow. If a landlord or property manager truly questions the legitimacy (or reasonableness) of the accommodation being requested, then contact your lawyer AT ONCE! The ramifications of improperly withholding housing from someone who is dependent upon a guide or support animal can be extraordinary, and that is one decision you should not want to make on your own.

Mr. Woodburn is an attorney with Caldwell & Kearns and serves as associate counsel to PAR. Mr. Swartz is also an attorney with Caldwell & Kearns.  A substantial portion of their practices is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. They routinely counsel employers on employee relations issues as two of the voices of the PAR Legal Hotline.