Wherever there are no-pet rules or pet restrictions, there seem to be an unusual number of residents needing service animals, often to facilitate therapy for purported mental disabilities like depression. Can the no-pet rules or pet restrictions be enforced in such cases?
The anti-discrimination laws protect persons with either physical or mental disabilities. Mental disabilities include, without limitation, any mental condition that limits a major life activity or that requires special education or related services. Depression can qualify as a mental disability. Discrimination includes, among other actions, “refusal to make reasonable accommodations in rules, policies, practices, or services when those accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” Such rules include no-pet and limited-pet rules, and such policies include pet deposits and restricted pet areas.
Whether allowing a service animal is a reasonable accommodation must be evaluated on a case-by-case basis. Circumstances that can warrant it can include, but are by no means limited to, the owner’s depression and related symptoms improving after getting the animal (e.g., the owner having a brighter affect and being more social) or the owner no longer sitting around the house brooding but instead paying attention to the animal’s needs (e.g., having to go outside to take the animal for walks and rides). The animal need not qualify as a service animal, and there is no requirement that the animal be specially trained to alleviate the disabilities if special skills are not needed to help ameliorate the owner’s disabilities. Sometimes, the innate qualities of an animal alone, such as a dog’s friendliness and ability to interact with humans, make it therapeutic.
If there is skepticism about the alleged disability or the reasonableness of allowing a pet as an accommodation, it is incumbent on the landlord or community association to request documentation or open a dialogue. An open dialogue would be part of an interactive process in which each party seeks and shares information. Once the landlord/association knows of the desire for an accommodation, the landlord/association has the burden and the obligation to request any additional information needed to evaluate the disability and the need for a service animal.
When presented with requests to allow service or companion animals that are otherwise prohibited, management should first evaluate whether sufficient information has been provided to determine whether there is a disability and whether the requested animal is needed as a reasonable accommodation for it. If management does not have sufficient information, management should ask for the additional information needed. Care should be exercised to ensure that the information being requested is genuinely needed for evaluating the disability and accommodation. Requesting medical records is problematic because much of the information, which is private, may be irrelevant to justifying the need for the animal. If the needed information cannot be obtained from another reliable source (e.g., the treating physician or psychologist/psychiatrist refuses to provide the needed information in a letter), management can suggest, but not require, that the tenant/occupant provide medical records with any irrelevant information redacted. Once all the needed information is received, any doubts should be resolved by erring on the side of caution and allowing the animal, given the favor that the anti-discrimination laws give to disabled persons, the cost of defending a discrimination lawsuit, and the potential liability if a court or jury disagrees with the decision to disallow the animal. If management determines that there is a disability but the animal is not a reasonable accommodation, management should engage in a dialogue with the resident to explore other possible accommodations, if any.
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