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Advisory Regarding Service Animals and Emotional Support Animals

Agents should be very careful when asked whether a landlord will accept pets.  Both Federal and State law require a landlord to reasonably accommodate a tenant’s disability.  Disability is defined very broadly to include any mental or physical disorder or condition that makes it difficult to perform a major life activity.  If a tenant requests that the landlord permit a service animal or emotional support animal because it is necessary to accommodate the tenant’ disability, the owner would be required to allow the tenant to keep the animal in most situations.

 

A service animal is defined as a dog or trained miniature horse that has been specifically trained to assist a person with his or her disability.  But the definition of an emotional support animal is considerably more vague that the definition of a service animal.  An emotional support animal must alleviate one or more identified symptoms or effects of a person's disability, but there is no requirement that a support animal be individually trained or certified, or that it be a dog.  There is legislation working its way through the State Assembly that may clarify the situation with regard to emotional support animals but there is no definitive time frame set for this clarification.

 

It should be noted that if the animal qualifies as a service or emotional support animal, the fact that HOA rules restrict pets would not override the tenant’s right to keep a service or support animal.  Also, generally speaking, the breed, size or weight of the animal would not, in and of itself, override tenant’s right to keep a service or emotional support animal.

 

As a general rule, the landlord may not inquire as to the tenant’s specific disability or the severity of that disability.  If a tenant asks for a reasonable accommodation to keep an animal and that need is obvious, the landlord generally must allow it with no further inquiry.  But if a tenant asks for an animal as a reasonable accommodation and the tenant’s disability is not readily apparent, the situation becomes difficult for the landlord.  The landlord may ask the tenant for written verification that the tenant is disabled but cannot ask about the nature or severity of the actual disability.  The written verification may come from a medical practitioner but the law does not currently require this.

 

The law requires a “reasonable accommodation” of the tenant’s disability.  So if the specific animal in question has a history of violence, for instance, that might be cause for the landlord to deny the tenant’s request.

 

Based upon all of the above, the agent should NEVER be giving any legal advice to the landlord and should always advise the landlord, in writing, to consult with the landlord’s own legal counsel with regard to these matters.

 

The other issue for agents to be aware of is the fact that there are testers who call real estate agents asking the agent whether the landlord will accept companion animals.  The testers might refer to the animals as companion, support, service, comfort, therapy or similar category of animal.  The testers may indicate that the animal has been prescribed by their therapist.  They may indicate that the animal is a large animal to try to trap the agent and landlord into saying no in violation of the disability laws.  The agent should never respond that the landlord will not accept any such animal.   The better approach would be to advise the caller to submit a rental application if they are interested in renting the property.  It is also suggested that when putting a lease listing into the MLS that you do not check the “No Pets” box but rather check the box for “Submit” , if there is such an option in your MLS.  Many agents have received substantial fines for violation of the disability laws because they have replied “No” to caller’s inquiries as to whether the landlord will accept such animals.  As an agent, please be very careful how you handle this matter.
CAR has a Q & A entitled  “Landlord-Tenant Law: Pets and Service and Support Animals”  which goes into more detail regarding this whole issue.  You can find this article at www.car.org. under the legal tab.

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