Handling Disputes About Assistance Animals

Handling Disputes About Assistance Animals



By Eileen O’Toole, Esq.

The federal Fair Housing Act (FHA) prohibits discrimination in the sale or rental of housing based on an individual’s disability, and requires a housing provider to make “reasonable accommodations” that are necessary for a person with a disability to fully use and enjoy his housing. This may include allowing tenants with a disability to keep a service animal, regardless of a “no-pets” policy. Under the law, a service animal is not considered a pet. Disputes between a landlord and a tenant as to whether a dog or other animal maintained in a tenant’s apartment qualifies as a service animal can end up either in housing court or before the State Division of Human Rights (DHR), or before both simultaneously.

The FHA and similar New York laws don’t prevent landlords from adopting and enforcing pet polices—as long as they don’t use their policies to keep out assistance animals. Whatever the policy or rules on pets, a landlord must make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy his apartment.

Pet Restrictions Generally

Many leases contain “no-pet” clauses, barring pets altogether. Other leases may permit pets with restrictions on the number, type, size, or weight of the pet, and impose conditions such as extra fees, security deposits, or additional rent charges. Courts have upheld no-pet clauses and some other pet restrictions. However, if these lease provisions are not enforced in a timely manner, the NYC “Pet Law,” in effect since 1985, can result in a waiver.

Under the Pet Law, if a tenant in a multiple dwelling has kept a pet openly for at least three months without objection by the landlord, a no-pet clause in the tenant’s lease is deemed unenforceable. The Pet Law waiver doesn’t apply when keeping the pet creates a nuisance, causes damage to property, or endangers the health, safety, or welfare of other occupants. If a landlord and tenant can’t agree on whether the landlord has waived the Pet Law or whether the tenant’s pet is causing a problem, a court may have to decide the issue.

Pet Restrictions That Don’t Apply to Assistance Animals

A no-pet clause or other pet restriction also may not apply if a tenant can prove that he or she is entitled to keep a dog or other animal for therapeutic reasons as a reasonable accommodation for a disability pursuant to the FHA [42 U.S.C.A. Section 3604 et seq.], the NY State Human Rights Law [Exec. Law 290 et seq.], or NYC Code Section 8-107. Questions that can arise under these laws in response to a tenant’s request to keep an “assistance animal” include:

  • Whether the tenant is disabled;
  • Whether an animal kept in the tenant’s apartment is an “assistance animal” or merely a pet;
  • Whether the tenant needs the assistance animal to use and enjoy her apartment;
  • Whether the landlord has reasonably processed a tenant’s request to keep the assistance animal; and
  • Whether the tenant is entitled to keep more than one assistance animal.

Although landlords may require applicants or tenants to pay a pet deposit under some circumstances, they can’t require an applicant or tenant to pay a deposit for an assistance animal.

Housing Discrimination Against Disabled Tenants Prohibited

The FHA broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers conditions that may not be obvious or apparent, as long as the condition is serious enough to substantially limit major life activities, such as seeing, hearing, walking, or caring for oneself. All individuals with qualifying disabilities are entitled to reasonable accommodations—including assistance animals—when needed to allow them to use and enjoy their homes.

Assistance animals are not “pets” under fair housing laws. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals can go by many names—including service animals, therapy animals, companion animals, or emotional support animals.

Disabled tenants may require assistance animals. The FHA bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their apartments. The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in buildings that either prohibit or impose restrictions or conditions on pets. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment.

Fair housing laws allow not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing, regardless of what type of assistance they provide to an individual with a disability. Courts have rejected a requirement that hearing dogs must be professionally trained or certified.

Example: Landlord appealed DHR’s decision that it discriminated against tenant on the basis of her disability, and lost. Tenant provided landlord with adequate notice of her need for a hearing dog at her apartment, thus triggering landlord’s duty under the Human Rights Law to provide reasonable accommodation, by sending a letter informing landlord that she was suffering from hearing disability requiring service, and attaching a letter from her otologist stating that, based upon his examination of tenant, she had bilateral hearing loss and would benefit from a hearing dog. A damages award of $10,000 for mental anguish was found excessive and was reduced to $1,000 [Mozaffari v. NY State DHR, 63 A.D.3d 643 (1st Dept. 2009)].

Criteria for Assessing Request to Keep Assistance Animal

Problems often arise when landlords—or tenants—don’t understand what fair housing laws actually say or mean. If a tenant requests permission to keep an assistance animal, treat it as a reasonable accommodation request for an exception to the building’s pet policies. The law doesn’t require that a request be made at a particular time or in a particular manner. What matters under the law is:

  • Whether an otherwise qualified tenant seeking to use and live with the assistance animal has a disability—that is, a physical or mental impairment that substantially limits one or more major life activities;
  • Whether the person making the request has a disability-related need for an assistance animal. In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
  • Whether the tenant needs the assistance animal to use and enjoy the apartment; and
  • Whether a reasonable accommodation could be made so that the tenant can keep the assistance animal.

If all the criteria are met, then fair housing laws require a landlord to modify or make an exception to its pet policies to permit an individual with a disability to live with and use an assistance animal at the building, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the building’s services.

For example, some buildings have policies prohibiting certain dog breeds because of restrictions in the building’s liability insurance policy. In a 2006 memo, HUD specifically addressed insurance policy restrictions as a defense for refusing to grant reasonable accommodation requests involving a breed of dog that the owner’s insurance carrier considered dangerous. If the building’s insurer would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, then HUD will find that this imposes an undue financial and administrative burden on the housing provided. Nevertheless, the HUD memo warned that investigators will check the owner’s claim by verifying with the owner’s carrier “and consider whether comparable insurance, without the restriction, is available on the market.”

The request for an assistance animal also may be denied if the animal is a direct threat to the property or the health and safety of others. But a landlord can’t make that decision based on speculation about the animal’s size or breed; you have to look into the specifics of the particular animal involved.

Don’t Make Process Overly Burdensome for Tenant

Under fair housing law, you can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent—for example, a guide dog used by a blind or visually impaired person. But you may request information from a tenant with a known or obvious disability if his need for an assistance animal isn’t readily apparent or if the disability itself isn’t obvious.

Example: In March 2005, a cooperative shareholder tenant sent landlord a brief note from her internist stating that having a pet would be “medically and psychologically beneficial” for her chronic depression. In response, landlord quickly advised tenant that the co-op’s rules permitted her to have up to two cats, but that dogs were prohibited. A month later, tenant made a second request, this time specifically asking for permission to have a dog. With her second letter, tenant submitted another brief note from her internist, which included a conclusory assertion that tenant’s “having a dog is both theraputic [sic] and necessary in working through her disability.” Landlord promptly responded, requesting more detailed information supporting tenant’s need to have a dog. Three weeks later, without having provided landlord any further information, tenant complained to DHR, alleging that, in violation of the Human Rights Law, landlord had engaged in an unlawful discriminatory practice relating to housing because of disability. DHR ruled for tenant and awarded her $5,000 in compensatory damages, as well as $5,000 in punitive damages.

Landlord appealed and won because the court found that DHR’s decision wasn’t supported by substantial evidence. Tenant failed to demonstrate, through either medical or psychological expert testimony or evidence, that she required a dog in order to use and enjoy her apartment and failed to establish that, by requesting more information, the petitioners had denied her request for a reasonable accommodation [Northgate Cooperative v. Donaldson, 54 A.D.2d 414 (App. Div. 2 Dept. 2008)].

While additional information may be needed to respond to a tenant’s request to keep an assistance animal, landlords who make the process unduly burdensome can be penalized.

Example: In June 2015, the Justice Department announced that the owner of the largest affordable housing cooperative in New York agreed to pay a $50,000 civil penalty and dedicated as much as $600,000 in compensation to resolve allegations that it failed to provide reasonable accommodations to people who required assistance animals. Specifically, the government accused the landlord of maintaining and using an overly burdensome and intrusive policy governing waivers of its no-pet rule, which deterred and prevented people with disabilities from obtaining reasonable accommodations in violation of fair housing law. The government claimed that before changing its policy, the landlord required applicants seeking a reasonable accommodation to the building’s no-pet policy to fill out five forms (including one to be completed only in blue ink and another to be typewritten), prohibited certain breeds of dogs, required animals to be neutered or spayed, imposed annual renewal requirements, and required applicants to provide their medical records [U.S. v. Riverbay, June 2015].

Establishing policies and procedures for handling assistance animal requests may help avoid claims of unfair handling of a tenant’s request.

Example: In May 2015, a Manhattan housing cooperative agreed to pay $85,000 to settle fair housing claims based on its alleged denial of reasonable accommodations to its residents by prohibiting them from keeping emotional assistance animals. The building had no written or established policies or procedures for making reasonable accommodations for individuals who required assistance animals in connection with a disability. The landlord either denied or ignored requests from three tenants to keep assistance animals, and instead started eviction proceedings. The tenants then filed federal and state fair housing complaints. Ultimately, the government obtained court orders to halt the evictions until the fair housing case was resolved. Under a settlement agreement, the landlord agreed to adopt a policy for providing reasonable accommodations to residents with disabilities and to train its employees and officers to follow the new policy. The landlord also agreed to pay one tenant $30,000 and another $55,000 along with other damages, and to let them keep emotional assistance animals in their apartments [U.S. v. East River Housing Corp., May 2015].

Practical Pointer: You should also watch out for potential retaliation claims when handling requests to keep assistance animals by residents with disabilities. It’s unlawful to retaliate against applicants, tenants, or others because they’ve exercised their fair housing rights by requesting a reasonable accommodation or filing a fair housing complaint against you.

What to Do When a Disability Isn’t Obvious

If a tenant’s disability is not readily observable, a landlord may ask for reliable disability-related information that’s necessary to verify that the tenant has a qualifying disability—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. But you can’t ask the tenant for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor, psychiatrist, social worker, or other mental health professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the tenant himself, under certain circumstances. But you can’t ask applicants or tenants for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

Sometimes, even after initial inquiry, it is unclear whether a tenant has a disability that requires an assistance animal for use and enjoyment of his apartment. Housing courts often defer to HUD or DHR to decide disability questions before ruling on whether a landlord can claim that a tenant has simply violated a no-pets policy.

Example 1: Landlord sued to evict tenant for keeping a dog in violation of her lease. Tenant claimed that she needed the dog to help with her disability and that landlord was illegally discriminating against her. Tenant had diabetes and was legally blind. She claimed that the dog was a “comfort animal” and helped relieve depression. After landlord started the eviction case, tenant filed a disability discrimination complaint against landlord with HUD. HUD referred tenant’s complaint to DHR. The court found that DHR should decide the issue of whether landlord was discriminating against tenant and decided to delay any ruling in the eviction case until DHR ruled on the discrimination issue [90-10 149th St. v. Badillo: NYLJ, 3/8/00, p. 30, col. 5 (Civ. Ct. Queens)].

Example 2: Landlord sued tenant to enforce a letter agreement they signed in which tenant agreed she wouldn’t keep a dog in her apartment. Tenant had signed the letter, but then got a dog without landlord’s consent. Landlord sued to evict tenant, who claimed that she got rid of the dog. But tenant later claimed that she signed the letter under duress and that landlord unlawfully discriminated against her as a disabled person who needed a service dog due to her depression. Although she hadn’t raised this defense at first, the court allowed tenant to amend her answer to landlord’s complaint. There were questions of fact as to whether tenant was disabled, whether she required a dog as a support animal, and whether this was a reasonable accommodation that landlord must provide [NAR Apartments LLC v. Ippolito: Index No. 107866/10, NYLJ No. 1202535365618 (Sup. Ct. NY; 11/21/11)].

Example 3: HUD issued a discrimination charge against landlord for barring co-op tenants from keeping emotional support dogs needed to remediate mental illness. Landlord appealed HUD’s decision in federal court. In the meantime, the housing court ruled for landlord in an eviction proceeding against tenant for harboring the dog, which some claimed was a nuisance. Tenant then asked the federal court to delay her eviction while the federal court decided the appeal. The court ruled for tenant. If evicted now, the court would lose its ability to provide relief to tenant if it ultimately decided in her favor. And while landlord claimed that the dog was noisy and dangerous, 15 neighbors submitted sworn statements saying that the dog was well behaved [U.S. v. East River Housing Corp.: 13 CV 8650 (SDNY; 11/14/14; Ramos, J)].

Tenants Don’t Always Have a Qualifying Disability

Sometimes, a tenant has an impairment and considers himself disabled, but he doesn’t qualify as an individual with a disability under fair housing laws.

Example 1: Landlord sued to evict tenant for keeping a dog, in violation of his lease. Tenant claimed that he needed the dog for therapeutic reasons. The court ruled for landlord. Tenant appealed and lost. The FHA requires landlord to reasonably accommodate the needs of handicapped tenants. But tenant didn’t prove any handicap. He submitted only an ambiguous statement from his doctor that depressed people may benefit from keeping pets, along with notes in his medical records stating that he was anxious about losing his dog. Even if tenant did have a mental or physical impairment qualifying as a handicap under the law, he also didn’t show that keeping the dog was necessary to his enjoyment of the apartment [Landmark Properties v. Olivo: NYLJ, 8/12/04, p. 30, col. 3 (App. T. 2 Dept. 2004)].

Example 2: DHR ruled for tenants, who claimed housing discrimination due to landlord’s denial of their request to keep a companion dog to help with their depression. DHR ordered landlord to withdraw an eviction proceeding it had started against tenants and to pay tenants $7,500 in compensatory damages. Landlord appealed and won. Tenants showed that having the dog helped them with depression but failed to present proof that the dog was “actually necessary” in order for them to use and enjoy their apartment [Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879 (App. Div. 2 Dept. 2009)].

Example 3: Landlord sought permission from HPD to evict tenant for keeping a dog in her apartment, in violation of her lease. Tenant claimed that she bought the dog to relieve her daughter’s anxiety. HPD ruled that landlord must make an exception to its no-pet policy to accommodate tenant’s disabled daughter. Landlord appealed and won. There was insufficient proof that tenant’s daughter was disabled. And, even if she was disabled, there was no proof that the dog was required for her use and enjoyment of the apartment. There was no reason for landlord to accommodate tenant [Contello Towers Corp. v. HPD: NYLJ, 11/17/04, p. 19, col. 1 (Sup. Ct. Kings 2004)].

Example 4: Landlord sued to evict tenant who kept a dog in violation of his lease and didn’t remove the dog after landlord sent tenant a notice to cure. Tenant then complained to DHR, claiming discrimination. Tenant argued that the pet was a therapy dog needed to relieve his depression. DHR later sued landlord to recover damages based on unlawful discrimination. Landlord asked the court to bar DHR from presenting testimony or documents asserting that tenant should be allowed to keep the dog as a reasonable accommodation to his disability. The court ruled for landlord. Tenant’s psychotherapist wrote varying opinions over time as to tenant’s diagnosis. At one point the therapist stated that, while tenant was no longer depressed, he needed the dog to prevent a recurrence of the symptoms. The court agreed with landlord that these statements were too speculative to prove that tenant was suffering from a disability that required a reasonable accommodation [New York State Division of Human Rights v. 111 East 88th Partners: Index No. 402894-2007, NYLJ No. 1202670317446 (Sup. Ct. NY; 9/5/14)].

Tenants May Need More Than One Assistance Animal

Nothing in the FHA prevents an applicant or tenant from requesting a reasonable accommodation to keep more than one assistance animal. The animals may perform different disability-related tasks or services. Or the applicant may say that one or more provide emotional support to alleviate the effects of an existing disability. However, the fact that a landlord has permitted a tenant to keep one assistance animal as a reasonable accommodation doesn’t mean the landlord can’t dispute the need for a second assistance animal.

Example: Section 8 tenant’s lease prohibited her from keeping dogs or cats as pets. At some point tenant got a dog, which landlord allowed her to keep as an accommodation for unspecified reasons. But landlord denied tenant’s request to get a second dog. Tenant took in a second dog anyway without notifying landlord. Later, landlord discovered the second dog and received complaints that the dog was disturbing the neighbors. Landlord immediately sent tenant a notice to cure. Tenant claimed in response that she had had the second dog for more than 90 days and that landlord therefore had waived its right to seek its removal. Tenant didn’t claim at that time that she had a disability or that the second dog was an assistance animal. Landlord then sued to evict tenant, and tenant in turn filed housing discrimination complaints with HUD and DHR, who dismissed tenant’s complaints. Tenant appealed and lost.

The housing court then ruled for landlord but stayed the eviction warrant for six weeks to let tenant get rid of the second dog. Tenant didn’t appeal that decision. Instead, tenant sued landlord in federal court, claiming that landlord had violated her civil rights based on her disability. Tenant got a temporary restraining order stopping her eviction while she pursued her federal court case. Tenant then sought a preliminary injunction, while landlord asked the court to dismiss the case.

Ultimately, the court ruled against tenant. Tenant was diabetic and claimed that the second dog alerted her when her blood sugar became low. But her dog trainer testified that a dog couldn’t be trained to do this. Tenant identified no major life activity that was impaired by her diabetic condition. And tenant walked her dogs and worked seven days a week as a home health aide, commuting daily via public transportation. Tenant failed to show how allowing her to keep a second dog was a reasonable accommodation of a disability. Landlord could proceed with the eviction [Ayyad-Ramallo v. Marine Terrace Associates LLC: Index No. 13-CV-7038, 2014 WL 2993448 (EDNY 7/2/14)].

Tenants with Assistance Animals Must Otherwise Comply with Lease and Law

Tenants generally must refrain from objectionable conduct and maintain their apartments in a safe and habitable condition. A landlord retains the right to seek damages from a tenant for repairs required due to damage to the premises caused by an assistance animal. Tenants with disabilities who use assistance animals also are responsible for the animal’s care and maintenance.

Example: The NYC Department of Mental Health and Hygiene (DOH) fined a tenant $1,000 for keeping a mixed-breed pit bull dog and a cat without having them immunized against rabies [Matter of Matthews: ECB App. No. 1400077 (3/27/14)].

Further Reading

See “Dos & Don’ts When Handling Requests For Assistance Animals: Parts 1 and 2,” Fair Housing Coach; www.FairHousingCoach.com. And for additional information on local housing laws concerning pets, see Chapter 33, Pets, in the 2016 NYC Apartment Management Checklist.

About the Author

Eileen O’Toole, Esq. is a partner with the New York City law firm of Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., whose law practice concentrates on landlord-tenant matters. A frequent writer and lecturer on rent regulation and other real estate topics, she is also the Contributing Editor of New York Landlord v. Tenant, the Insider’s monthly legal decision service.

Ms. O’Toole is also editor of the annual NYC Apartment Management Checklist, a one-stop resource for complying with the many laws and regulations affecting New York City apartment buildings. For information about the 2016 edition, please click here.

Ms. O’Toole graduated from Boston University School of Law and served as Deputy Counsel to the Rent Stabilization Association of N.Y.C., Inc. before entering private practice. She has served as a member of the NYC Civil Court’s Housing Court Advisory Council, and as a lecturer at NYU’s Real Estate Institute.

 

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