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Monday, June 2, 2014  
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Orlando REALTOR® | May/June 2014

The Fair Housing Act provides special considerations for assistance animals in regards to rental properties

Patty the Property Manager (ORRA’s completely fictitious advice columnist*) was representing an owner with a firm “no pets” rule for his pristine single-family home. A qualified prospective tenant with a service dog applied to rent the home and since Patty had pretty good knowledge of the Fair Housing Act, she advised to her owner to accept the application.

The owner agreed, but wanted to charge the tenant a standard pet deposit. Was he allowed to do that?

No. In a 2013 Notice, the United States Department of Housing and Urban Development specifically determined that while housing providers may require applicants/residents to pay a pet deposit, they may not require applicants/residents to pay a deposit for an assistance animal. However, if the assistance animal causes damage to the property, the housing provider may charge for the cost of repairing the damage, if it is the provider’s practice to assess tenants for any damage they cause to the premises. Conditions and restrictions that may be applied to pets may not be applied to assistance animals.

The classification of assistance animals as “reasonable accommodations” under the Fair Housing Act is a legal hot topic for property managers. So big, in fact, that the topic was addressed in both a class for REALTORS® and in a general session during the ORRA-sponsored 3rd Annual Orlando Regional Fair Housing Summit.

ORRA’s sponsorship of the summit was made possible by the ORRA Market Diversity Subcommittee, which was awarded a $5,000 grant from the National Association of REALTORS® to support its 2014 activities. As a result, the summit offered four REALTOR®-specific classes, including two that offered continuing education credit.

In one of those classes, “Legal Differences Between the Americans With Disabilities Act and the Fair Housing Act,” instructors Rosemary O’Shea, BakerHostetler Law, and Rebecca Rhoden, Lowndes, Drosdick, Doster, Kantor & Reed, P.A., addressed the legal issues surrounding service animals at length.

Rhoden explained that like a wheelchair-ramp or wide doorways, a service animal is considered a reasonable accommodation, and that “the FHA makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.”

Once a housing provider receives a request for an assistance animal as a reasonable accommodation, they are to consider the following questions:

  • Does the personal seeking to use and live with the animal have a disability (a physical or mental impairment that substantially limits one or more major life activities?
  • Does the person making the request have a disability-related need for an assistance animal?
  • Does the animal work, provide assistance, perform tasks or services for the benefit of a personal with a disability or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answers to these questions are yes, the FHA requires the housing provider to grant the request to accommodate a service animal, unless the request falls within exceptions specified by the FHA. Courts have consistently held that housing providers must work with the requesting party to determine if they are entitled to an assistance animal.

As a final note, Rhoden and O’Shea pointed that dogs are not the only animals that may be qualified as a service animal; monkeys and even miniature horses count, too!

Orlando REALTOR® magazine acknowledges attorneys Rosemary O’Shea and Rebecca Rhoden for their gracious assistance with this article.

* Patty the Property Manager columns are provided by the ORRA Property Management Subcommittee and are posted regularly in the “Committee Connection” section of the ORRA website. Look under the “Specialties” tab or search the site using keywords “Committee Connection.”

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