One significant area of change has to do with the landlord’s treatment of tenants with pets and animals in residential dwellings, and that is the point of this blog.
Over the eight years of the Obama Administration, federal regulators established liberal policies and rules that effectually hamstrung many businesses, both small and large. Even though the current administration has taken big steps to reverse some of those problems, the hangover remains still today.
A new normal becomes established once these liberal policies have been in place for a period of time. That’s what has happened in the business of regulating how landlords treat tenants with emotional support animals. This shift in public expectations may have permanently changed the way landlords, tenants and professional property managers see the world.
There are two federal agencies that write policy concerning this topic: The U.S. Equal Employment Opportunity Commission, which enforces the Americans with Disabilities Act (ADA), and the Federal Housing Administration (FHA). Oftentimes people get confused about the application of the regulations from these two organizations as they pertain to housing. The ADA is perhaps the more strict and burdensome of the two, but it does not apply to housing except as to publicly assessable common areas for multi-family housing properties exceeding four units. And let’s be clear, it does not apply to the dwelling units themselves, even in large apartment buildings or condominiums. That’s where the FHA comes in with its enforcement of federal fair housing laws and regulations.
One of the fair housing classes that FHA enforces is discrimination against people with disabilities. It has long been established that if a disabled person has and needs a service animal, a landlord cannot decline an applicant because of that animal. In fact, they cannot even charge an extra fee as would normally be expected with a pet. The landlord must make reasonable accommodations to make the property livable for the applicant. Unless there is an obvious disability, such as a wheelchair, a landlord can ask for a certification that the animal has been trained to perform certain services. It is okay to ask about the role the animal performs, but it is not okay to ask about the applicant’s disability itself.
It is worth noting that FHA doesn’t use the word “pet” for service “animals”. Under FHA policy there is a clear distinction between pets and animals, and this brings us to the latest liberal-minded accommodation, which is for emotional support animals. These are animals that are not trained as are service animals, but it has been determined by some medical or mental health care professional that the tenant genuinely needs this animal for emotional support. Just as with service animals, the landlord cannot charge additional pet fees and must make other reasonable accommodations. The landlord can ask for written certification for emotional support animals.
Something our management company in Marietta has begun doing is asking tenant applicants to complete a supplemental application when pets or animals are involved. Two of the purposes of this supplemental application are to streamline and standardize our inquiries about pets and animals. We also believe that this helps us protect ourselves and our landlord clients from legal liabilities stemming from the pet’s or animal’s behavior. On this application, we ask questions like: Has this pet ever bitten anyone? Is this animal vicious? Does the pet have necessary vaccinations? We even ask for the shot records and many other questions relative to the animal’s past behavior.
What we hope is that if we are ever sued because of the animal’s behavior, we will be able to show evidence that we did our professional due diligence. We have also discovered that by weighing each application based upon the information given that our once standard pet fee may now be variable depending upon the perceived liability risk. For example, if the pet has a history of biting, we may bump up the fee a little or we might require liability insurance specifically covering the pet. We might also decline an applicant based upon the answers given. In the case of service or emotional support animals with a vicious past, we would not be able to demand extra fees or require things like shot records or additional insurance, because we would not be able to decline the applicant for these reasons anyway.
Another protection this supplemental application affords us is that if the pet or animal has a history of vicious behavior, for example, and the applicant lies about this on the application, we might be vindicated if a lawsuit occurs because of that pet or animal.
Daniel R. Wilhelm
3 Options Realty, LLC., CRMC®, The Green Broker
The author of this Blog is neither an attorney nor an accountant. Nothing written should be construed as legal advice. Conclusions conveyed are outcomes based upon practical experience and should not be depended upon to be a common outcome of other similar circumstances. Consult with a professional before making tax or legal decisions.
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