CREJ

Page 6

— Property Management Quarterly — July 2017

www.crej.com

Legal

or property managers, emo-

tional support animals are a

big deal. Not only can prop-

erty managers expose them-

selves to fair housing dis-

crimination claims for wrongfully

refusing to allow emotional support

animals, but also because of a lack

of accreditation requirements for

these animals under the Americans

with Disabilities Act, they face the

problem of tenants fraudulently

claiming pets as service animals

to circumvent no-pet policies and

pet-related costs. These deceptive

practices have been so prevalent

in recent years that the General

Assembly enacted Colo. Rev. Stat. §

18- 13-107.3, which imposes fines

up to $500 on those who intention-

ally misrepresent a pet as a service

or emotional support animal for the

purpose of obtaining rights reserved

for people with disabilities.

People with physical disabilities

use service animals, which have

been rigorously trained to perform

tasks specific to a person’s disabil-

ity. People suffering from psycho-

logical disabilities use emotional

support animals, which provide

comfort and companionship for

those suffering from illnesses like

depression, anxiety and post-trau-

matic stress disorder, but have not

been specifically trained to perform

tasks related to a person’s mental

illness.

Both types of animals are pro-

tected under the Fair Housing Act

because they are considered assis-

tive aides to those with disabili-

ties rather than pets. Accordingly,

because they are not “pets,” the FHA

generally requires

property manag-

ers make excep-

tions to pet-related

restrictions or

costs as “reason-

able accommoda-

tions” in rules and

policies to afford a

disabled person an

equal opportunity

to use and enjoy a

dwelling.

Spotting a legiti-

mate need for

these types of

service animals is not easy, which

means animals sporting official

looking vests, patches or harnesses

can be easily regarded as genuine

emotional support animals, even

if they are not. Even more trouble-

some, it is not required that certi-

fied animals wear any identifiable

garment. So, it is important to know

the other methods by which prop-

erty managers can ensure they are

not falling victim to fraudulent fair

housing claims by pet-owning ten-

ants.

For an individual to obtain the

right to an emotional support ani-

mal, he must request a reasonable

accommodation because of a dis-

ability and show the animal aides

the individual by relieving the

impairments caused by the disabil-

ity. To have a disability one must

have, or be regarded as having, a

physical or mental impairment that

substantially limits one or more

major life activities. Major life activ-

ities are defined as, but are not lim-

ited to, caring for oneself, perform-

ing manual tasks,

seeing, hearing,

eating, sleeping,

walking, standing,

lifting, bending,

speaking, breath-

ing, learning, read-

ing, concentrating,

thinking, commu-

nicating and work-

ing.

If the tenant has

a disability that

substantially limits

his or her major

life activities and

the disability is relieved by an emo-

tional support animal (or other

means), the tenant should request a

reasonable accommodation. A prop-

erty manager who receives a proper

reasonable accommodation request

should approve it, unless doing so

would create an undue financial or

administrative burden on the prop-

erty manager or alter the nature of

the housing.

The key here is that just because

a tenant asserts he has this type of

animal does not automatically trig-

ger the protections. The tenant car-

ries the burden of proving the ani-

mal is a bona fide emotional sup-

port or service dog. But, when there

is a bona fide reasonable accom-

modation request for a service dog

or emotional service animal, the

property manager must forego a no-

pet policy, pet deposit or fees, and

“pet rent.”

Furthermore, a property manager

may not refuse a canine service

animal because of its specific breed,

size or weight; however, if they

conclude the animal poses a “direct

threat to the health and safety of

others” based on an individualized

evaluation of its conduct, that may

be sufficient to revoke or deny the

accommodation. The tenant owner

of the animal is responsible for the

animal’s conduct and any damages

it may cause even though the prop-

erty manager may not demand a

pet deposit or additional pet-related

charges.

When evaluating the reasonable

accommodation request the Depart-

ment of Housing and Urban Devel-

opment recommends a property

manager ask only two questions:

Does the person seeking to use and

live with the animal have a dis-

ability, and does the person making

the request have a disability-related

need for an assistance animal? If

the answer to both questions is yes,

the request should be granted.

HUD also states an “unreasonable

delay” in making the decision of

whether to grant the accommoda-

tion can amount to a violation, but

does not indicate a specific time

period in which a request must be

granted. Yet, in an 11th Circuit case

in 2014, a condominium associa-

tion’s repeated requests for a ten-

ant’s medical history over many

months amounted to a “construc-

tive denial” of the disability accom-

modation.

Emotional support animals are a

big deal for property managers and

being well educated on the require-

ments can mean the difference in

protecting against fraudulent ser-

vice animal claims and being sued

for fair housing violations.

No-pet policies don’t apply to service animals

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CB1003_Comercial Real Estate Ad_Property Management Quarterly.indd 1

5/26/17 3:05 PM

Donald “Corky”

Eby

Attorney, Robinson

and Henry PC,

Castle Rock

Tucker Allen

Law Clerk,

Robinson and

Henry PC, Castle

Rock