Cinthia Manzano
Shareholder, Frascona, Joiner, Goodman & Greenstein PC
Landlords, owners’ associations and property managers across Colorado have been experiencing an increase in requests for accommodations for assistance animals – either a traditional “service animal” or the increasingly common “emotional support animal.” When these requests conflict with established rules restricting pets on the property, questions arise as to the rights and obligations of the parties. A related question is, if you do have to allow the animal, can you still request a pet deposit and/or charge additional fees? This is an evolving area of the law, and there have been developments at both the state and federal level that one needs to be aware of when handling these types of requests.
Service animals vs. emotional support animals. First, as an introduction, there is a distinction between “service animals” and “emotional support animals.” A service animal under Colorado law can be a dog (or miniature horse) that is properly trained and licensed to assist persons with disabilities. These animals do work or perform tasks for the benefit of an individual with a disability that are directly related to the individual’s disability and needs. Examples might be a guide dog for a blind person, a dog that assists someone with epilepsy having seizures, or a dog that assists someone who is diabetic and going into shock.
Emotional support animals, on the other hand, are any type of animal (not just dogs) that contributes to a person’s emotional support, well-being, comfort and companionship for disabilities and medical conditions like depression and anxiety. Unlike service animals, emotional support animals do not require specific licensing or training.
Under federal law, the Fair Housing Act prohibits discrimination based on disabilities and requires landlords to make “reasonable accommodations” for disabled tenants. Both emotional support animal and traditional service animals are types of assistance animals that can be considered a reasonable accommodation for a person with a disability recognized under the FHA.
As a result, even if the property does not allow certain animals, if the requested animal provides a service or emotional support for a person with a recognized disability, you generally have to accept that person and their animal into your property. For example, if some apartment units do not allow cats but a prospective tenant has a need for an emotional support cat to help alleviate his depression as documented by a medical professional, you have to accept that tenant (and the cat).
Determination of legitimacy. How should you go about determining if you have received a legitimate request to make an accommodation for an assistance animal, and what may you, as a landlord, legally ask for in order to evaluate the legitimacy of the request?
A tenant does not have a right to an accommodation unless:
- The tenant has a recognized disability.
- There is a disability-related need for the requested animal.
- Accommodating the animal is necessary to afford the disabled tenant an equal opportunity to use and enjoy the dwelling.
- Accommodating the animal would not impose undue financial or administrative burdens on the landlord.
- The specific animal requested by the tenant does not pose a direct threat of harm or property damage.
Landlords have certain rights with respect to requesting reliable documentation of the tenant’s disability and the connection between the tenant’s disability and the need for the requested animal. Colorado landlords also can verify that the documentation supporting the requested emotional support animal complies with certain state requirements. In addition, landlords may individually assess the requested animal and prohibit animals who pose a direct threat of harm or property damage.
First, in evaluating whether the person making the request has a disability, landlords should know that a disability is “physical or mental impairment” that “substantially limits a major life activity.” Housing providers may ask individuals who have disabilities that are not readily apparent or known to submit reliable documentation of a disability. A housing provider may not ask an applicant or tenant to provide access to medical records.
Next, the housing provider should determine whether there is a disability-related need for the animal. If the request is made for a service animal, ask to see the licensing and training documentation for the animal. If the request is for an emotional support animal, there is a disability-related need if the animal provides emotional support that alleviates any identified symptoms or effects of an existing disability. If the disability is readily apparent or known but the disability-related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability-related need for an assistance animal.
After determining that there is a disability and a disability-related need, a housing provider should consider whether the requested accommodation is necessary and reasonable, and whether the specific animal requested poses a direct threat of harm or property damage. Here, the landlord should ask whether there is some other reasonable accommodation that could be made instead of allowing the animal. The landlord can evaluate whether allowing the animal would impose an undue financial and/or administrative burden or whether it would fundamentally alter the nature of its services. The landlord also can consider whether the specific assistance animal in question poses a direct threat to the health or safety of others, or poses a substantial threat of physical damage to the property of others, that cannot be reduced or eliminated by another reasonable accommodation. In that regard, general breed, size or weight limitations may not be used. In addition, the landlord may not generalize based on stereotypes or assumptions regarding certain types of animals (e.g., pit bulls are aggressive); there must be an individualized assessment of the specific animal in question and this assessment must be based on objective evidence.
Lastly, under Colorado state law, when a doctor, nurse or mental health professional is approached by a patient seeking an assistance animal as a reasonable accommodation in housing, the medical professional is required to make a written finding regarding whether the patient has a disability and, if so, whether there is a disability-related need for an animal. In addition, the medical professional can only make such a determination if he or she has met with the patient in person (or by telemedicine, in the case of doctors only), is sufficiently familiar with the patient and the disability, and is qualified to make the determination. In light of those requirements, landlords should be on the lookout for tenants who may have simply filled out an online questionnaire in order to receive documentation for their disability or disability-related need for an assistance animal.
Those Colorado state law requirements were recently enacted by the passage of House Bill 16-1426, which addressed assistance animals and the growing concerns about exploitation by people falsely putting vests on their dogs or presenting certificates claiming that their dogs are assistance animals in order to enter public places or as grounds to request housing accommodations. In addition to the requirements imposed on doctors, nurses and other medical professionals, it now is against the law for someone to intentionally misrepresent the existence of a disability or need for an assistance animal in order to gain access to a public place or to request a housing accommodation.
Assuming you do have a legitimate request for accommodation, can you charge a pet deposit or impose other conditions on the occupant? Generally speaking, the answer is no if the animal is a service animal or an emotional support animal. Under federal law, legitimate assistance animals are not considered “pets” at all. As a result, charging a pet deposit for a service animal or emotional support animal could expose the housing provider to liability under the FHA. Rather than asking for a deposit or additional fees specific to the animal, best practices would be to consider any damage caused by the animal as being covered under the tenant’s regular security deposit.
