Phil Querin Q&A - I understand that MHCO has developed a new Assistance Animal Agreement. What was wrong with the old one?

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March 4, 2015
Phil Querin
MHCO Attorney
Querin Law

Question. I understand that MHCO has developed a new Assistance Animal Agreement.  What was wrong with the old one?

Answer.  If the test of a good or bad form is whether it works, I would say there was nothing wrong with the old form.  To my knowledge, we heard of no complaints or claims arising due to problems with the form. However, over time, we hear of more and more issues concerning the use – and abuse – of the service animal designation.  In an effort to better assist members, we thought it would be a good idea to review this form, the current rules and regulations, and make changes where appropriate.

 

As I explained in last week’s article, there are several designations that first need to be clarified. A “service animal” under the federal Americans with Disabilities Act (“ADA”) is limited solely to dogs that have been individually trained to work or perform tasks for a person with a disability, e.g. guiding people who are blind, alerting people who are deaf, or protecting a person who is having a seizure. The ADA does require that landlords make reasonable accommodations for residents with disabilities requesting to have a service animal. Note that the term “disability” under the ADA is very, very, broad.[1]

 

Although service animals must be on leash or harness, they may also be controlled through voice commands or hand signals. Service animals are not “pets.”  This means, among other things, that certain park rules for pets, such as requiring residents sign a Pet Agreement, cannot be required if it is a service animal.  Dogs whose only purpose is to provide comfort or emotional support to a resident do not qualify under the ADA.

 

Under the Fair Housing Act, as amended, housing providers, including manufactured housing communities, must make also “reasonable accommodations” for persons with disabilities requesting to have an assistance animal for emotional support, or to provide other forms of help.

 

Similar to service animals, assistance animals are not regarded as “pets,” and residents cannot be required to sign a Pet Agreement for them.  However, assistance animals are not limited to dogs that have been specially trained.  They can include any animal that assists and performs tasks for the benefit of a person with a disability, including emotional support that alleviates one or more identified symptoms or effects of a person's disability.

 

Lastly, the label “companion animal” is more of a generic term, and the role it serves is what determines which laws will apply.

 

What follows is a summary of the main issues addressed in MHCO’s new Assistance Animal Agreement.  Without implying that the Fair Housing Council of Oregon has “endorsed” or “approved” the form, I did consult with them, and their suggestions were very helpful and insightful in developing what you see today.[2]

 

  1. We note in the form that the landlord reserves the right to refuse to permit an animal becoming an assistance animal if:
    1. It has previously caused verifiable and significant damage or injury to persons or property in the Community;
    2. The landlord’s insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal and it would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal.[3]
    3. Note, however, that prior to such refusal, a Landlord should secure written verification substantiating the undue financial and administrative burden.

 

  1. The resident with the assistance animal is responsible to see that it conforms to all of the community’s rules and regulations, such as being on leash; responsibility for removal of all feces, droppings, etc.; being left unattended outside the home or space.
    1. Consistent with the conduct of all animals and pets in the Community, the assistance animal may not cause any substantial damage (to persons or property), engage in threating behavior, or cause any disturbance to other residents, their guests, or any other third parties in the community.
    2. We confirm in the form that by signing below, the resident confirms that he/she has reviewed the community rules and regulations as they apply to all other animals and pets in the Community.  If the resident believes that one or more of the community rules and regulations should not be applied to their assistance animal, the resident is instructed to immediately notify the landlord.

 

  1. Consistent with the community’s policy regarding all animals and pets, the resident shall be liable for any losses, damages, claims, and expenses, including attorney fees, directly or indirectly caused by their assistance animal while in the community.

 

 

 

 

 

 

  1. In the event of breach of the assistance animal agreement, the landlord reserves the right to terminate it and demand removal within ten days of written notice. A “breach” is defined in the form to mean the occurrence of any event that would constitute a material violation of the agreement or ORS 90.396, as it pertains to their assistance animal.  The resident’s failure to remove the animal upon demand entitles Landlord to issue a curable Notice of Termination to Resident under ORS 90.630.

 

  1. Given the fact that one never knows for sure if some court might, in the future strike down a provision in our form, we have inserted what is known as a “savings clause.”  It reads:

 

“If any portion of this Agreement shall be deemed to be in violation of Federal and/or State Fair Housing Laws, it shall be deemed null and void, and the balance thereof shall remain in full force and effect.”

 

  1. The form advises residents that if they believe they have a disability that requires their use of an assistance animal, they may request that an accommodation be made.  This is MHCO’s Reasonable Accommodation Request Form No. 15.  A landlord is entitled to obtain reasonable information in order to assist in determining whether the requested accommodation is reasonably necessary because of the disability.  However, if a person’s disability is obvious, or otherwise known to the landlord, and if the need for the requested accommodation is readily apparent or known, then the landlord may not seek any additional information about that disability or the disability-related need for the accommodation.

 

  1. Lastly, the form reminds the parties that the Assistance Animal Agreement must be signed before the animal will be permitted to occupy the Home/Space as an assistance animal.
 


[1] An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

See, http://www.ada.gov/cguide.htm

 

[2] This is to say that their suggestions pointed out to me where the mines in the minefield were located.

[3] Note that this “burden” must be both “financial” and “administrative.” These are legal terms of art, and before getting into a battle you can’t win, I suggest you consult with your attorney to understand the application of these two terms as they relate to your particular situation.

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