Phil Querin Q&A: Assistance" Animals - When Do They Become A Ruse?"

Answer:  Disclaimer: Certain folks, especially those of the regulatory bent, will likely disagree with my answer.  The reason stems, I believe, from one of four sources: (a) Rigid (some might say “stubborn” or “dogmatic”) adherence to a law or regulation, regardless of how illogical and silly it may be; (b) A belief that everyone is a victim, and deserves to pampered and coddled even in the face of obvious evidence they are gaming the system; (c) Political correctness run amok; or (d) A combination of some or all of the preceding causes.

I admit I am one of those folks who have watched in disbelief as some residents have taken the most outlandish positions in an effort to keep a pet they know full well violates the community rules.  I recently saw a situation where a new tenant, knowing that the community did not permit pets, moved in and promptly moved her large dog in to live with her, having paid to get the necessary sham certifications and paperwork online, no questions asked. 

 Here are some general rules:

• The Americans with Disabilities Act, or “ADA” does not apply to private residential housing – only public accommodations. 
• ORS 659A.143 governs the use of assistance animals in public accommodations.  The rules seem rational and reasonable, but technically do not directly apply to private housing.
• The Fair Housing Act applies to the use of assistance animals in housing.
• HUD has set out the issues to be vetted for a landlord to make a determination whether to grant a resident the right to have an assistance animal.
• Assistance, emotional support and service animals are not pets, and accordingly, pet rules do not strictly apply (such as requiring pet deposits).
• Service animals (or “assistance animals” under Oregon’s definitions) are required to be certified as such. Not so for emotional support animals. Nevertheless, all such animals are to serve the disability of the requesting resident. But getting a doctor’s letter, or that of another person in the medical profession is not that difficult.
• You do not have to accept just any animal as an assistance animal.  If it requires some additional cost to the landlord, it is not required. (See, HUD article here.)

 

Here is what HUD says in the above article (HUD footnotes omitted):

“For purposes of reasonable accommodation requests, neither the FHA nor Section 504[1] requires an assistance animal to be individually trained or certified.  While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

 

1. Does the person seeking to use and live with the animal have a disability - i.e., a physical or mental impairment that substantially limits one or more major life activities?

 

1. 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 question (l) or (2) is "no," then the FHA and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.

Where the answers to questions (1) and (2) are "yes," the FHA and Section 504 require the housing provider to modify or provide an exception to a "no pets" rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. “(Emphasis added.)

 

The Fair Housing law basically requires that if one has a disability, they may request that their landlord grant them a “reasonable accommodation” – that is, an exception to the community rules, allowing the resident permission to do that which is otherwise prohibited. 

Thus, size limits don’t strictly apply. And occasionally, residents attempt to have a second pet, claiming that it isn’t a “pet,” but an assistance animal.  However, here is where the line blurs. How far does the landlord have to bend to accommodate residents, especially in those situations where the resident is gaming the system?

MHCO has forms for dealing with requests for reasonable accommodations, whether they be a non-compliant animal, or some other issue, such as an additional parking space, etc.  First and foremost, I suggest following the same protocols in all cases, from the legitimate to the illegitimate.

Secondly, I suggest following the 3-prong test (besides cost, which doesn’t really apply in most cases) as follows:  Would granting of the request endanger the Health, Safety, or Welfare of other residents or guest in the community.  If the resident, for example, asks to have a pit bull as an assistance animal, it is not altogether unreasonable, after vetting the dog’s demeanor, socialization, etc., to propose another less aggressive animal as a “reasonable accommodation.” 

Third, for such breeds with known vicious propensities, you should check with your liability insurance carrier to see if they have a short list of animals they will not insure if there is an attack.  If the carrier says that animal is on that short list, then you should propose another less aggressive animal. In discussing this with the Fair Housing Council of Oregon while drafting the reasonable accommodation request portions of MHCO’s form, they acknowledge the financial burden exception – however, suggested another step, i.e. finding an insurance carrier that would insure such aggressive animals if it was not overly expensive for the landlord to do so. I will leave extra step for discussion with your own attorney.

Then there are cases in which the request is clearly a ruse to get a pet approved as an assistance animal, when and it is clear to any reasonable person, it is a ruse.  You will have to decide on your own, or with the assistance of your attorney, how to proceed.  If, after giving the resident the MHCO form to complete, you are satisfied that it is a ruse, you are going to have to decide whether to call their bluff, or relent. If you relent, you will have done so only after requiring them to complete the necessary paperwork. However, be prepared for more copycats - pardon the pun.

If you decide not to relent, and I’ve been involved in a few such cases, you have to be prepared for the next move.  ORS 90.405 (Effect of tenant keeping unpermitted pet) provides as follows:  

1. If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

 

1. For purposes of this section, a pet capable of causing damage to persons or property means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

 

1. If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days written notice specifying the breach and the date of termination of the rental agreement.

 

1. This section shall not apply to any tenancy governed by ORS 90.505 (Definition for ORS 90.505 to 90.840) to 90.840 (Park purchase funds, loans). [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

 

While I suppose there is an argument that this statute doesn’t apply, since it pertains to “pets,” I believe that argument begs the question, since it is your position that these are pets disguised as “assistance animals.” If the resident believes you’re prepared to commence an eviction proceeding, perhaps they will relent.  If not, the judge can decide. Of course, be prepared for the resident to bring in some doctor, chiropractor, or therapist, to claim the resident needs the animal for some protected purpose. 

 

If the animal is dangerous, I strongly believe you are correct to take the issue to the mat, since doing nothing could result in injury to a resident or guest, and you can be sure you will then be accused of permitting the animal to remain when you should not have. Unfortunately, these issues can become expensive, and there is no assurance of victory in court.

 

It is possible for you and your attorney to develop some type of agreement which closes the loophole that is occurring at your community.  I can envisage language that with the proper recitals and provisions, would give you more protection than you now have.  However, as we know, until the matter is litigated, you’ll never know if the form is bullet-proof.  But having it in place is probably better than where you are now, and would likely make a resident think twice about trying to play the “support animal” card, if the agreement expressly says the animal is a pet and that was the sole reason for their wanting it.

 

The take-away here is that landlord must deal with reasonable accommodation requests on a case-by-case basis. Each set of facts are different. Not long ago I had a park client who refused a reasonable accommodation request, because it was too outlandish. A complaint was filed with BOLI, and we butted heads for a while. Eventually, BOLI relented, largely because the resident was too unreliable. Landlords must remember to pick their shots. Some principles are worth defending, and others not. In this case we believed that the issue was worth defending, to send a message to the tenant, and others who might be waiting to see the outcome, before they stepped up to test the landlord.

 

Lastly, there are indications that HUD may be tightening the definitions and loopholes so that landlords do not continue dealing with either gamesmanship, or accepting the risk of a dangerous breed, just to avoid a fight.

 

[1] Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act. Section 504 works together with the ADA and IDEA to protect children and adults with disabilities from exclusion, and unequal treatment in schools, jobs and the community. [See link here.]