Handling Requests for Emotional Support Animals: 3 Takeaways from a Recent Case
However, a no-pet clause or other pet restriction 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 federal Fair Housing Act (FHA), the NY State Human Rights Law (HRL), or NYC Code Section 8-107. We’ll use this case to highlight three takeaways when handling requests for assistance animals.
Court Eventually Sides with Disabled Tenant
In this recent case, a tenant moved into the owner’s building in 2011. At that time, he had been diagnosed with a major depressive disorder and generalized anxiety disorder. Then, in 2013, the tenant requested an accommodation from the owner so that he could get an emotional support dog despite the building’s no-pet policy. The tenant submitted a letter from his therapist recommending that he obtain an emotional support dog to assist him with his chronic mental illness. The owner denied this request, but offered that it would allow a bird or cat, or allow him an early termination of his lease, should he wish.
The tenant then complained to the state attorney general, who began an investigation on whether the owner’s denial was discriminatory. While the investigation was pending, the owner sued the tenant, seeking a ruling that its denial didn’t violate the federal Fair Housing Act (FHA) or the New York Human Rights Law (HRL). And the tenant counterclaimed for discrimination and for retaliation based on the owner’s shortening of his renewal lease term.
The trial court held that, although the tenant’s request clearly appeared to be reasonable, the tenant didn’t prove that having an emotional support dog was a necessary accommodation and failed to prove retaliation. The court ruled for the owner and dismissed the tenant’s counterclaim.
The tenant appealed and won in part. The appeals court dismissed the owner’s declaratory judgment, finding it to be premature, given the lack of any harm resulting from the tenant merely asking for an exception to the no-pet policy. The appeals court also found that the tenant was disabled and that an emotional support dog was necessary to give him an equal opportunity to use and enjoy his apartment within the meaning of the FHA and the HRL. The case was sent back to the lower court for further proceedings. The lower court found that there were additional questions that required a hearing before making a determination on the tenant’s request.
The owner ultimately lost its appeal. The lower court did nothing to violate prior orders in this case, and properly scheduled a hearing for additional testimony and determination of damages on the retaliation claim [Hollandale Apts. & Health Club, LLC & Bonesteel, Dec. 2021]
Making the Case
At trial, the therapist described the diagnostic criteria for major depression and detailed the specific symptoms that the tenant displayed—such as extreme sadness, lack of motivation, difficulty in taking pleasure in anything, and sleep disturbances. The tenant rarely left his apartment and spent most of his time reading, watching television, or using the Internet. He slept during much of the day and was awake for much of the night due to sleep disturbances related to his depression. He did most of his shopping online; he described himself as a “recluse,” and his therapist said that his apartment had become a “cell.”
According to the therapist’s testimony, an emotional support dog would alleviate some of the tenant’s symptoms of depression and anxiety. The therapist testified that an emotional support dog would lessen the loneliness and isolation of the defendant’s life by providing him with companionship and unconditional affection. She also stated that a dog would alleviate the lack of structure in his life and help to move his sleep schedule toward a more normal pattern by requiring him to feed and walk the dog at regular intervals each day. And owning a dog would require the defendant to engage in regular exercise, which the therapist described as “one of the primary behavioral treatments for depression,” and would allow him to make better use of the grounds surrounding the apartment complex.
She testified that a dog’s companionship could alleviate the defendant’s social anxiety and act as a “security blanket,” increasing his confidence and willingness to interact with other people, and would also facilitate social interaction by offering opportunities to meet other people while outdoors with the dog. The therapist said that increased exercise and social interaction have been shown to have similar effects to antidepressant medication in alleviating depression and anxiety, and that increased energy levels arising from exercise and enhanced social interactions would improve the tenant’s motivation to engage in various activities of daily life.
Takeaway #1: Carefully Consider Requests for Assistance Animals
In this case, when the tenant submitted his therapist’s letter, the owner offered to allow a bird, cat, or early lease termination instead. This response indicates the owner may have made a snap decision about the tenant’s disability without considering how the specific type of assistance animal requested could help the tenant with his specific disability.
The fair housing reasonable accommodation rules kick in anytime anyone says a tenant or applicant needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. When you receive a request for an assistance animal, there are two relevant questions:
- Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
- Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or 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?
If the answer to both questions is “no,” then you are not required to make an exception to your pet policy and the reasonable accommodation request may be denied. But if the answer to both questions is “yes,” then fair housing law requires you to modify or make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal in the building, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of your housing services.
The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But you can’t make that decision based on speculation about the animal’s size or breed. Again, careful consideration is needed. You have to look into the specifics of the particular animal involved. Don’t make rushed decisions about whether to allow an animal on that basis without reviewing all the facts.
Takeaway #2: Minimize Potential for Retaliations Claims
Watch out for potential retaliation claims when handling requests to keep assistance animals by residents with disabilities. In this case, further trial is needed to determine if renewing the tenant’s lease on shorter terms after his request for a reasonable accommodation is considered retaliation. It’s unlawful to retaliate against applicants, residents, or any others because they’ve exercised their fair housing rights by requesting a reasonable accommodation or filing a fair housing complaint against you.
Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he requested a reasonable accommodation for an assistance animal—even if the discrimination claim is ultimately dismissed.
Takeaway #3: Disability Is Defined Broadly
Be careful about how you handle requests for assistance animals from applicants or residents who don’t appear to be disabled. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent, so you can’t reject a request based solely on outward appearances. In this case, the tenant had major depression and anxiety. He submitted a therapist’s letter attesting to his disability and need for an emotional support dog.
If a resident’s disability is not readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—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 be careful in asking. You can’t ask the resident 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 or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.
For example, you may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
A recent disability discrimination case involving an emotional support dog highlights the murky waters owners must navigate when making exceptions to pet policies as a reasonable accommodation for individuals with disabilities. Many leases contain “no-pet” clauses, barring pets altogether. And other leases may permit pets but 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.
However, a no-pet clause or other pet restriction 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 federal Fair Housing Act (FHA), the NY State Human Rights Law (HRL), or NYC Code Section 8-107. We’ll use this case to highlight three takeaways when handling requests for assistance animals.
Court Eventually Sides with Disabled Tenant
In this recent case, a tenant moved into the owner’s building in 2011. At that time, he had been diagnosed with a major depressive disorder and generalized anxiety disorder. Then, in 2013, the tenant requested an accommodation from the owner so that he could get an emotional support dog despite the building’s no-pet policy. The tenant submitted a letter from his therapist recommending that he obtain an emotional support dog to assist him with his chronic mental illness. The owner denied this request, but offered that it would allow a bird or cat, or allow him an early termination of his lease, should he wish.
The tenant then complained to the state attorney general, who began an investigation on whether the owner’s denial was discriminatory. While the investigation was pending, the owner sued the tenant, seeking a ruling that its denial didn’t violate the federal Fair Housing Act (FHA) or the New York Human Rights Law (HRL). And the tenant counterclaimed for discrimination and for retaliation based on the owner’s shortening of his renewal lease term.
The trial court held that, although the tenant’s request clearly appeared to be reasonable, the tenant didn’t prove that having an emotional support dog was a necessary accommodation and failed to prove retaliation. The court ruled for the owner and dismissed the tenant’s counterclaim.
The tenant appealed and won in part. The appeals court dismissed the owner’s declaratory judgment, finding it to be premature, given the lack of any harm resulting from the tenant merely asking for an exception to the no-pet policy. The appeals court also found that the tenant was disabled and that an emotional support dog was necessary to give him an equal opportunity to use and enjoy his apartment within the meaning of the FHA and the HRL. The case was sent back to the lower court for further proceedings. The lower court found that there were additional questions that required a hearing before making a determination on the tenant’s request.
The owner ultimately lost its appeal. The lower court did nothing to violate prior orders in this case, and properly scheduled a hearing for additional testimony and determination of damages on the retaliation claim [Hollandale Apts. & Health Club, LLC & Bonesteel, Dec. 2021]
Making the Case
At trial, the therapist described the diagnostic criteria for major depression and detailed the specific symptoms that the tenant displayed—such as extreme sadness, lack of motivation, difficulty in taking pleasure in anything, and sleep disturbances. The tenant rarely left his apartment and spent most of his time reading, watching television, or using the Internet. He slept during much of the day and was awake for much of the night due to sleep disturbances related to his depression. He did most of his shopping online; he described himself as a “recluse,” and his therapist said that his apartment had become a “cell.”
According to the therapist’s testimony, an emotional support dog would alleviate some of the tenant’s symptoms of depression and anxiety. The therapist testified that an emotional support dog would lessen the loneliness and isolation of the defendant’s life by providing him with companionship and unconditional affection. She also stated that a dog would alleviate the lack of structure in his life and help to move his sleep schedule toward a more normal pattern by requiring him to feed and walk the dog at regular intervals each day. And owning a dog would require the defendant to engage in regular exercise, which the therapist described as “one of the primary behavioral treatments for depression,” and would allow him to make better use of the grounds surrounding the apartment complex.
She testified that a dog’s companionship could alleviate the defendant’s social anxiety and act as a “security blanket,” increasing his confidence and willingness to interact with other people, and would also facilitate social interaction by offering opportunities to meet other people while outdoors with the dog. The therapist said that increased exercise and social interaction have been shown to have similar effects to antidepressant medication in alleviating depression and anxiety, and that increased energy levels arising from exercise and enhanced social interactions would improve the tenant’s motivation to engage in various activities of daily life.
Takeaway #1: Carefully Consider Requests for Assistance Animals
In this case, when the tenant submitted his therapist’s letter, the owner offered to allow a bird, cat, or early lease termination instead. This response indicates the owner may have made a snap decision about the tenant’s disability without considering how the specific type of assistance animal requested could help the tenant with his specific disability.
The fair housing reasonable accommodation rules kick in anytime anyone says a tenant or applicant needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. When you receive a request for an assistance animal, there are two relevant questions:
- Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
- Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or 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?
If the answer to both questions is “no,” then you are not required to make an exception to your pet policy and the reasonable accommodation request may be denied. But if the answer to both questions is “yes,” then fair housing law requires you to modify or make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal in the building, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of your housing services.
The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But you can’t make that decision based on speculation about the animal’s size or breed. Again, careful consideration is needed. You have to look into the specifics of the particular animal involved. Don’t make rushed decisions about whether to allow an animal on that basis without reviewing all the facts.
Takeaway #2: Minimize Potential for Retaliations Claims
Watch out for potential retaliation claims when handling requests to keep assistance animals by residents with disabilities. In this case, further trial is needed to determine if renewing the tenant’s lease on shorter terms after his request for a reasonable accommodation is considered retaliation. It’s unlawful to retaliate against applicants, residents, or any others because they’ve exercised their fair housing rights by requesting a reasonable accommodation or filing a fair housing complaint against you.
Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he requested a reasonable accommodation for an assistance animal—even if the discrimination claim is ultimately dismissed.
Takeaway #3: Disability Is Defined Broadly
Be careful about how you handle requests for assistance animals from applicants or residents who don’t appear to be disabled. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent, so you can’t reject a request based solely on outward appearances. In this case, the tenant had major depression and anxiety. He submitted a therapist’s letter attesting to his disability and need for an emotional support dog.
If a resident’s disability is not readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—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 be careful in asking. You can’t ask the resident 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 or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.
For example, you may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.