In 2021, almost 82% of all fair housing discrimination complaints involved rental transactions, and just under 55% of all discrimination complaints involved alleged discrimination based on disability – many of which were based on issues around assistance animals.
Types of assistance animals:
- Service animals – dogs with individualized training to perform specific tasks for the benefit of a specific individual with a disability
- Support animals – other animals that provide some sort of assistance or support for an individual with a disability
Laws About Assistance Animals
It is important to understand the laws and regulations regarding assistance animals:
- The Fair Housing Act protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities.
- The Americans With Disabilities Act protects people with disabilities from discrimination. The ADA requires that businesses and state/local governments do not discriminate against a member of the public with a disability who uses a service animal.
- The Pennsylvania Human Relations Act not only prohibits discrimination against individuals who need assistance animals, but it also prohibits discrimination against individuals who serve as handlers and trainers of assistance animals (i.e., they are not disabled themselves but help train animals for assistance purposes). If landlords have any questions about the details of specific laws and how they work together with any specific tenant situation, they should seek out a local attorney with experience in this area.
- Many municipalities also have their own local ordinances addressing discrimination.
There are some exceptions where the laws don’t apply, but they are narrow, and the state law has narrower exclusions than federal law. The best advice a broker/agent/property manager can give to a landlord seeking to take advantage of one of these exceptions is to seek out a local attorney with experience in this area. Do not try to give legal advice as to whether/how one or more laws may apply to their transaction.
Complying with Laws Regarding Assistance Animals
Department of Housing and Urban Development guidance helps landlords understand and comply with their obligations under the Fair Housing Act.
PAR developed a flowchart to help Realtors® provide guidance to landlord clients on how they can best comply with the law. This information is general guidance only and is not legal advice to either the property manager or landlord. Any questions about compliance in a specific transaction should be directed to local counsel for the landlord.
An inappropriate refusal to allow an assistance animal could generate a fair housing complaint alleging discrimination based on disability status.
According to 2020 data, almost 73% of all discrimination complaints involved rentals, and just under 55% of all discrimination complaints involved alleged discrimination based on disability.
Are Assistance Animals Pets?
No, an assistance animal is not a pet. Assistance animals perform tasks or provide other support for individuals with disabilities and should be thought of just like any other assistance device, such as a wheelchair or cane.
A landlord can have a “no pets” policy, but if a tenant or prospective tenant asks for an accommodation to keep an assistance animal, the landlord may have to make an exception to that policy… because assistance animals are not pets.
Assistance Animals and Fees
Simply put, a tenant cannot be charged higher rent, an additional security deposit or any additional fee because of the use of an assistance animal. The landlord can charge only the rent that would be charged to any other tenant, but of course, they can deduct any actual damage from the security deposit regardless of the source of the damage.
Potential Tenants
- Rental Applications – Landlords cannot ask about assistance animals on rental applications. Asking about assistance animals is the same as asking, “Do you have a disability?” Landlords cannot and should not ask any question designed to elicit information about whether a prospective tenant belongs to any protected class since that should not be considered in any way in making a leasing determination. Or, to look at it another way, “Do you have an assistance animal?” is pretty much the same as asking a person if they are a specific race/ethnicity. There’s no valid reason to ask for that information or make a decision based on the response.
- Disclosure – Landlords cannot and should not ask any question designed to elicit information about whether a prospective tenant belongs to any protected class, nor is there any obligation for a potential tenant to affirmatively disclose any information about being in a protected class since that should not be considered in any way in making a leasing determination. Or, to look at it another way, expecting a tenant to disclose whether they have an assistance animal is pretty much asking them to disclose their race, religion or other protected class.
- Future request – A tenant can make their request at any time, even after they’ve already brought an assistance animal into the property.
Requesting Documentation for Assistance Animals
A landlord can ask for documentation of their disability with limitations. No documentation can be required if the disability and need are obvious (e.g., a blind person with a seeing-eye dog). The landlord can ask for documentation that reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support on behalf of the prospective tenant, but cannot require that they provide specific information about the nature and extent of the disability.
A landlord is not required to grant an accommodation if the tenant refuses to provide the type of documentation outlined in the HUD guidance.
Pennsylvania implemented the Assistance and Service Animal Integrity Act in 2018. The act provides some additional clarity to state anti-discrimination laws and makes it a criminal offense to misrepresent one’s disability and/or one’s entitlement to a service or support animal. This might include things like making false claims about a disability and providing a fill-in-the-blank online form rather than a document from a professional with first-hand knowledge of the tenant’s condition and needs.
