Can your Resident’s Pet be Classified as a Service Animal?

On the rise are instances of pet owners trying to pass off Fluffy or Fido as service animals to skate around no-pet policies in rental homes.

A man walks into a bar with a dog tethered to a short leash. Skeptically, the bartender asks, “Is that a service animal?”

The man nods his head yes.

“And what is that dog trained to do for you?” he bartender says.

“He picks me up off the floor when I’ve had a few too many.”

As much as that sounds like a joke, a barkeep probably has heard the story from somebody trying to get their four-legged best friend inside. A quick check on social media reveals a number of stories about people who try to pass off their dogs, cats, and other pets as service animals where they otherwise wouldn’t be allowed.

A small dog nestled in a backpack or one behaving badly most likely aren’t validated service or assistance animals. But their owners challenge no-pet policies at coffee shops, grocery stores and other public places. Already, a number of complaints in Washington regarding the validity of animals claimed to be service animals is on pace to set a record this year, a Seattle television station reports.

Usually, the more official-looking the paperwork or animal, the better chance the owner thinks the animal will be accepted.

“We’ve seen a lot of residents present management with a certificate, card or registration from an organization such as the National Service Dog Registry,” says Lynn N. Dover, a partner at the Law Offices of Kimball, Tirey & St. John LLP. “The resident will often tell the manager that management can’t ask the resident for anything else. That’s really not true.”

Service animal rules differ between housing and public places

An animal wearing a “Service Animal” vest or an owner flashing an “official” identification card or badge does not make for a service animal by appearance alone. In places of public accommodation (such as stores, restaurants or even the rental office at an apartment community) service animals include only dogs that are trained to assist a person with a disability as outlined in the Americans with Disabilities Act (ADA).[1] The definition excludes emotional support animals and assistance animals.

But the rules are different when someone asks for an assistive animal in housing rather than in a place of public accommodation. At the bar, the patron’s reason for having the animal probably doesn’t hold water, but the bartender handled the situation perfectly. In a public place, the only two questions that can be asked are 1) Is that a service animal? and 2) What service is the animal trained to provide?

In housing, however, landlords can ask for verification of the disability and the disability-related need, says Dover.

[Additional Reading - Service Animals & The ADA: The Definitive Guide For Property Managers]

“Under the ADA, if somebody walks into a grocery store with a dog and it’s not apparent to the business owner that the person has a disability and needs the dog, they are only allowed to ask if it’s a service animal and what task is it trained to perform,” she said. “Under Fair Housing law, when somebody’s going to live on the property with an assistive animal, the housing provider is entitled to  verification of the disability and the disability-related need.”

As April’s Fair Housing Month approaches, Dover reminds landlords to be mindful of the Department of Housing and Urban Development’s (HUD) and Department of Justice’s joint statement issued in 2013 on assistance animals for people with disabilities. The statement confirms that assistance animals aren’t pets and that breed, size, and weight limitations may not be scrutinized when determining whether an animal should be accepted as an assistance animal. Instead, each animal should be individually considered.

Trained service and companion animals fall under Fair Housing rules

It’s important for property management professionals to realize that trained service and companion animals are both recognized as types of assistive animals under fair housing laws, Dover says. Denying a resident either of these could ultimately lead to potential fair housing liability.

Dover says clients are often confused about what defines a service animal and whether companion animals should be considered pets. Many are also unsure what kind of documentation is acceptable for the animals to be allowed.

“I think that there is still a lot of confusion out there about whether a companion animal is a type of assistive animal,” she said. “People seem to understand that they have to allow a trained service animal, like a guide animal or an alert animal or animals trained to pull wheelchairs or do other tasks for somebody with obvious disabilities. But they seem to think that the companion animal is different and it is a pet. It is not a pet. It is a recognized type of assistive animal and must be treated the same as the trained service animal.”

Determining Disability Is Key to Assistive Animal Exemption

The ultimate determining factor is not whether the animal has been registered or certified as a service animal but whether the resident or applicant has a disability and needs the animal because of the disability. Dover said that landlords can require written verification that the resident has a disability and has a disability-related need for the animal unless both are readily apparent.

Even then, asking for something like a doctor’s note can open Pandora’s Box. According to the HUD and Department of Justice Joint Statement on Reasonable Accommodations from 2004, verification does not have to come from a doctor. It can come from anyone in the healthcare industry, as well as non-health care related sources. The Statement says that a non-medical service agency, a peer support group, a credible third party in a position to know about the resident’s disability and disability-related needs or even the resident themselves can provide verification (such as providing proof that the person is under 65 and receiving SSI benefits).

One certain way to get into fair housing hot water is for a landlord to ask the resident or applicant the nature or extent of the disability. That’s a no-no, Dover says, and a sure way to get a Fair Housing complaint. At the same time, official-looking documents, capes, collars and badges don’t prove that the person has a disability and a disability-related need for an assistive animal.

“Sometimes managers get intimidated by residents into accepting these documents because they don’t want to be accused of fair housing violations,” Dover said. “But I think it’s important for housing providers to recognize that these types of documents are not a valid form of verification and they are entitled to verification of disability and disability-related need for the animal unless it’s apparent.”