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10/09/14 It's the Law: Pets Are Not Automatically Allowed Under The Fair Housing Act

It's The Law

Pets Are Not Automatically Allowed Under The Fair Housing Act

(10/09/14)

Question:

I have a dog. My dog is my companion. Without my dog, I am very lonely. My landlord says dogs are not allowed and I have to get rid of the dog. I say the dog should stay because of the Fair Housing Act. Am I right?

Answer:

The Fair Housing Act covers a broad variety of housing. Exceptions include (a) buildings with four or fewer units where the landlord lives in one of the units and (b) private owners who do not own more than three single family homes and do not use real estate brokers or agents or discriminatory advertisements. Virtually all other residential properties are subject to the Act.

The Act is intended to provide an equal housing opportunity for persons with disability. It requires the landlord or other authority to provide a reasonable accommodation where the accommodation is needed to provide the tenant an equal opportunity to use and enjoy the dwelling if the reasonable accommodation does not constitute an undue burden or fundamental alteration. To qualify for the reasonable accommodation, the person must pass a number of tests.

The first test is establishing the person has a disability. A disability is defined as (1)a physical or mental impairment that substantially limits one or more major life activities(such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, or learning); (2) a record of having such an impairment; or (3) being regarded as having such an impairment. If you cannot establish you have such a disability, no reasonable accommodation is required.

The second test requires proof that the accommodation, in your case a pet, will improve ability to accomplish one or more major life activities which are limited by the disability. Courts have frequently noted a tenant requesting an emotional support animal as a reasonable accommodation under the Fair Housing Act must prove the animal can improve his or her ability to function. Unlike a service animal (which is trained to perform specific tasks), an emotional support animal requires no special training. But, the tenant must still prove the animal improves ability to function by reducing impact of the disability.

If you pass the first two tests, there may still be other problems. If the emotional support animal is a particular problem (i.e. barks a lot, attacks other residents or is not kept under control) the accommodation may be denied as not reasonable due to impact on others. In the case of Woodside Village v. Hertzmark, the court ruled that the tenant with mental illness could be evicted because the tenant did not walk his dog in the designated areas and failed to properly dispose of the dog's feces.

A cottage industry has sprung up under the Fair Housing Act by which pet owners can obtain certificates, medallions and other documents stating their pet is an emotional support animal. Merely obtaining that certificate does not meet the criteria of the Fair Housing Act, as it is nothing more than material prepared at request of a pet owner to try and to get the pet on airplanes, cruise ships and even vacation property. The pet owner must still meet the Fair Housing Act tests, even with a certificate from one of the online services.

If you legitimately meet the criteria for an emotional support animal under the Fair Housing Act, the Act is quite powerful. The recent case of Warren v. Delvista Towers Condominium Association, Inc. is a case on point. In that case, Warren had been diagnosed with severe psychological disorders and his doctor strongly recommended Warren live with his assistance animal, Amir, because of the dog's therapeutic use and function. The Delvista Towers Condominium Association had a no pet policy and refused to allow the dog on ground that the accommodation was per se unreasonable because Amir is a pit bull and pit bull dogs are banned by ordinance in Miami-Dade County.

The court ruled that if the county ordinance was enforced it would violate the Fair Housing Act by permitting a discriminatory housing practice. The court noted that HUD allows denial of a reasonable accommodation based on undue administrative burden or fundamental alteration to the nature of operations. HUD also allows for denial of a reasonable accommodation if the animal's behavior poses a direct threat and its owner takes no effective action to control the animal's behavior. HUD promulgated a notice stating that request for accommodation of an assistance animal can be denied if (1) the specific assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. There is no provision under the law for a local ordinance to override it. Warren won his case to keep Amir.

These cases can be emotional. They are most easily resolved through cooperation. If the person seeking a reasonable accommodation provides information to establish qualification under the Fair Housing Act, the accommodation should be granted. Often, the requesting person fails to provide information or chooses to fight rather than cooperate and the matter escalates to court. In these cases, cooler heads should prevail and the parties work toward a cooperative resolution of the accommodation request to avoid escalation.

By: William G. Morris, Esquire.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle Other articles of interest can be viewed at our website, www.wgmorrislaw.com

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