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So Let's Talk About . . . Companion/Comfort Animals In Rental Properties

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, State of Wisconsin, Reasonable Accommodations, Assistance Animals, Companion/Comfort Animals / Comments

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I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come. So let's talk about companion/comfort animals in rental properties.

Background:

I will use the terms comfort animals and companion animals interchangeably throughout this post.

So we are all on the “same page" a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support. Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.

Wisconsin does not have a specific statute related to comfort animals. Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats. entitled “Animals Assisting People with Disabilities" applies to companion animals. It does not. That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments. Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.

So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision? Comfort animals are dealt with under a much more broad section of fair housing law dealing with "reasonable accommodations" which can be found at sec. 106.50(2r)(4), Wis. Stats.

A "reasonable accommodation" is a request made by a tenant for a change in a landlord's rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.

For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord's "no pet" policy.

The Law:

It is considered to be discriminatory to refuse to allow a tenant's request to keep a comfort animal if they meet the following requirements:

1. The tenant meets the definition of having a disability under Wisconsin or federal law ("an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment").

2. The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.

3. There must be an identifiable relationship (or nexus) between the tenant's disability and the request.

So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.

A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two. If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.

The tenant's specific disability need not even be disclosed - just the fact that the tenant has a disability is sufficient.

A tenant's request for a reasonable accommodation may be oral or in writing and the actual term "reasonable accommodation" need not be used. The request can even be made by someone on the tenant's behalf.

Practical Effects:

In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.

It is not even required that the tenant's doctor confirm that the tenant has a disability. HUD and DOJ's Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant's disability" may provide the verification of the tenant's disability.

As mentioned previously, a tenant's comfort animal need not be specially trained or certified. A comfort/companion animal can be any type of animal that the tenant wants. It could be the dog or cat (or mouse, rat, lizard, fish, . . . ) that the tenant owned prior to becoming disabled. It could be the stray dog that the tenant found walking down the alley last week. It could be a cat that the tenant's mother no longer wants in her house. It could be the rat that the tenant bought at the local pet shop.

I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant's companion animals . . . a miniature horses (because it would live longer than a dog and the tenant's mental health disability would be exacerbated by the death of another dog that wouldn't not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because). There is no limit on the type/breed, size, or age of a companion animal.

So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.

A landlord can deny a tenant's request for a companion animal if it:

1. Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.

2. Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.

3. Poses an undue financial burden and administrative burden.

4. Fundamentally alters the nature of the housing provider's operations.

For example, a landlord could exclude a tenant's comfort animal if that animal's behavior poses a direct threat because it attacked another tenant.

In order to make a decision to deny a tenant's reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis. You cannot just refuse the tenant's pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous. There must be a direct threat not just a speculative risk. Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.

I have worked with many landlords and management companies in analyzing whether a tenant's request for a reasonable accommodation to keep a companion animal should be granted. Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.

I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches, or pain medication. By thinking this way, many landlords will be better able to keep themselves out of trouble. Let me explain provide an example.

One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets. It was a very innocent question and one that I sure many landlords might have themselves.

The answer is a resounding “NO." Why is that?

Remember, a companion animal is not a pet. Again, think of the companion animal as an assistive device such as a wheelchair. Would it be acceptable to require all tenants that use wheelchairs to live in one building together? Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor? Of course not. Well the same goes with the tenant with the companion animal.

Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.

Having said that, a tenant that has a companion animal is still responsible for the animal's behavior and any damage that it may cause. For example, the tenant must still pick up after the companion animal. The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others. The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.

If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed. Since comfort animals are not specially trained or certified poor behavior is often an issue. I have had to evict several tenants with companion animals as a result of their poor behavior. In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building. Another case the animal (a dog again) bit another tenant. Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.

Conclusion:

The popularity of comfort/companion animals is not waning. I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful. Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed. And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise" their pet as a comfort animal.

If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet" or “limited pet" policy, I am certain that you soon will. As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.

If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the AASEW's upcoming LANDLORD BOOT CAMP on February 23rd, 2013.

04-30-13 UPDATE: HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities. See my post on this.

Tristan is a shareholder with the law firm of Petrie+Pettit and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.

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