Assistance Animals are (not) Pets

American's love pets. I've read statistics that more than 60% of American households have pets (then again I've also read statistics that 82% of Europeans bite their nails in the shower, so who knows!*). Yes, Americans love pets. But we American landlords - not so much. The problem is the damage that pets do to apartments. Even if the tenant pays a nice pet deposit and covers all the obvious damage that their pet causes, there's the smell that never seems to leave. Apartment building can be particularly difficult places for pets because so many people living in close proximity to each other is not the ideal place for animals that make noise and usually need lots of space to move around.

The point is that many building adopt a "No Pet Policy" and strictly enforce it. In affordable housing properties, HUD allows owners to adopt such policies so long, of course, that it is applied evenly and that it is made clear in the lease/house rules. Properties can also limit what type or size pets are allowed and can also collect pet deposit** upon move in.

There is one important exception:

Assistance animals.

In the words of the HUD Manual (4350.3 2-44) "Assistance animals are not pets". In other words - while HUD allows owners to ban pets, they can not deny a tenant the right to an assistance animal (aka service animal. aka support animals. aka therapy animals). The rule that requires owners to allow these animals is the "reasonable accommodation" rule. Reasonable accommodations are, well, reasonable accommodations for disabled tenants. The law requires that owners make changes, exceptions, or adjustments to a program, service, building, unit, or rule in order to accommodate someone who is disabled. A disability in the world of HUD is either physical or mental. That is not say that I think mental disabilities are not disabilities, only that HUD makes zero distinction between the two and that can have some unexpected consequences; assistance animals being one of them. Read on please!

When a tenant has a physical disability, it is almost always clear and objective. The benefit of the accommodation is equally clear. So for example if a tenant is blind, that is a clear disability that no one would argue with. If this tenant requests a seeing eye dog as a reasonable accommodation, it is obvious what the purpose of the dog is. This would be clear example of the reasonable accommodation/service animal rule.

What happens, however, when a tenant claims a mental disability?

When a disability is apparent there is no doubt that this tenant is disabled***, but with a mental disability we need to rely on the word of doctors and mental health professionals. These professionals do not need to provide a details diagnoses and there is no way to appeal or challenge that diagnoses.

In addition, the service animal must perform a "task or service that alleviates one of more of the identifies symptoms or effects of a person's existing disability". In other words - just because a person is disabled, he does not have the right to bring in any pet he wants; it has to be a pet that addresses his disability. Again, in the case of a physical disability it is usually quite clear. If a person is blind, a seeing eye dog helps him "see". But what about a mental disability? The most common cases tend to be "emotional support" animals. When you read emotional support animals you might think it is limited to a cute dog or maybe even a cat, but no such limitation exists. A tenant can claim that a pet shark gives him emotional support and you would be forced to accommodate! The only thing this tenant needs is a letter from a professional stating: "please allow my patient to have a pet shark as it will help them with their disability". That's it.

That is all fine if all of the pros recognized the consequence of their letters and diagnoses. But what often happens is: a tenant wants to bring their pet iguana with them into their new apartment. When he learns that he can't he goes to his doctor and asks that he please write them a letter stating the he needs his pet lizard. The doctor is a nice guy and wants to make his patient happy. To him this letter is just an innocent request - it's not like he is writing a prescription for pain medication - and won't cause any harm.

What the doctor does not realize is that by writing this letter he is creating a legal obligation on landlords that can not be challenged but that can cause a big headache for a lot of people. There is not a landlord in the world who is not happy to allow a reasonable accommodation for someone who needs it. But when something so subjective and vague such as an emotional support goldfish for a tenant who suffers from loneliness (who doesn't!) is allowed in the building, it creates a ripple effect. Before you know it everyone in the building is bringing in letters from their doctors and your building turns into an animal shelter. There is a reason that buildings often do not allow pets and it is because they can cause great damage and disturb the quality of life for other tenants. Doctors do not understand the ramifications of their letters.

HUD defines a disability as an impairment that substantially limits one or more major life activity. Just because a tenant has some anxiety does not necessarily put them in this category. I am not a psychologist or psychiatrist, but neither are the doctors writing these letters! Usually it is their regular GP, if even that. HUD is vague in exactly what qualifications the professional must have. They state "physician, psychiatrist, social worker, or other mental health professionals". Firstly it is absurd that social workers are able to declare someone disabled. Does the FDA allow social workers to write prescriptions for mental health medication? Of course not. And yet we allow them to declare their client disabled in order to force landlords to accommodate them at great inconvenience****. And also, since when is a regular physician qualified to diagnose mental health? Do we allow physiologists to diagnose cancer? And then of course there is the "other mental professionals". Who are they and what are their qualifications?

In addition let's be honest that the modern day definition of "mental disability" is probably a little too broad (especially when you don't need an official diagnoses).

HUD also requires the pet in question to specifically address the disability. Too often I see doctors writing letters for tenants for pets that are clearly just pets. You see, for an emotional support animal, no training is necessary. If the animal is cute then it passes! Do these doctors actually check and see if these pets will provide the support that will help alleviate the symptoms that are supposedly limiting a major life activity? Very often a new move in will ask if we allow pets. When we tell them no, their pet dog will magically turn into an assistance animal. It can be infuriating!

Once again let me be clear: I have no problem with a genuinely disabled person (physical or emotional) bringing in a pet that will help them. No one has a problem with that. That problem is that HUD sets rules which are so easy to take advantage of. If this post came across as particularly bitter - please excuse me: I am hungry and tired!

If HUD, health care pros and even tenants understood the cost and inconvenience to the owners they might be a little more hesitant to allow these things to happen.

Then again, they probably won't.

See this paper, written in 2006 that discusses some of the legal cases going on regarding service animals. I have not followed every case because as I wrote in a footnote - it almost never pays to deny a fair housing request. Just see how HUD likes to brag about the charges they filed in reasonable accommodation cases.

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* I don't know my liability for publishing a statistic that I made up just now, so at this point let me be clear that I made this statistic up. I have no idea how many Europeans actually bite their nails in the shower. I expect it is the average amount. (RIP Mitch)

** No more than $50 at the time the pet is brought on to the property and then $10 a month afterwards up to $300 total. If the tenant wants to pay the entire thing up front, they may.

*** And in fact we can not ask for documentation in these cases

****I know that reasonable accommodations have limitations and if the cost is too high, the animal poses a threat, etc we do not have to accommodate, but I would not want to be the one defending my decision to deny an accommodation to a Fair Housing Administrator or Federal Judge. Unless the tenant wants a pet elephant, I am betting you are going to let them have it.