CREJ - Property Management Quarterly - July 2017
For property managers, emotional support animals are a big deal. Not only can property managers expose themselves to fair housing discrimination 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 intentionally 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 disability. People suffering from psychological disabilities use emotional support animals, which provide comfort and companionship for those suffering from illnesses like depression, anxiety and post-traumatic stress disorder, but have not been specifically trained to perform tasks related to a person’s mental illness. Both types of animals are protected under the Fair Housing Act because they are considered assistive aides to those with disabilities rather than pets. Accordingly, because they are not “pets,” the FHA generally requires property managers make exceptions to pet-related restrictions or costs as “reasonable accommodations” in rules and policies to afford a disabled person an equal opportunity to use and enjoy a dwelling. Spotting a legitimate 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 troublesome, it is not required that certified animals wear any identifiable garment. So, it is important to know the other methods by which property managers can ensure they are not falling victim to fraudulent fair housing claims by pet-owning tenants. For an individual to obtain the right to an emotional support animal, he must request a reasonable accommodation because of a disability and show the animal aides the individual by relieving the impairments caused by the disability. 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 activities are defined as, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. If the tenant has a disability that substantially limits his or her major life activities and the disability is relieved by an emotional support animal (or other means), the tenant should request a reasonable accommodation. A property manager who receives a proper reasonable accommodation request should approve it, unless doing so would create an undue financial or administrative burden on the property 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 trigger the protections. The tenant carries the burden of proving the animal is a bona fide emotional support or service dog. But, when there is a bona fide reasonable accommodation 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 property manager may not demand a pet deposit or additional pet-related charges. When evaluating the reasonable accommodation request the Department of Housing and Urban Development recommends a property manager ask only two questions: Does the person seeking to use and live with the animal have a disability, 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 accommodation 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 association’s repeated requests for a tenant’s medical history over many months amounted to a “constructive denial” of the disability accommodation. Emotional support animals are a big deal for property managers and being well educated on the requirements can mean the difference in protecting against fraudulent service animal claims and being sued for fair housing violations.