Q: I own a small apartment complex. I allow my tenants to keep small dogs (up to 25 pounds). I recently found out that one of my tenants violates the “small dog” policy in a big way: he has a 160 pound Newfoundland named Riley. Another tenant told me that the dog barks while its owner is away. I spoke to the landlord of Newfie and told him he was breaking his lease. I told him he either had to find another place to live or find a new home for his dog. He said Riley is an emotional support animal; he needs the dog to help him deal with severe anxiety. He said he had the right to keep the dog under the Fair Housing Act. Riley is a beautiful dog, but doesn’t my tenant have to prove that Riley is trained and needed? What are my options here?
A: First, we question your tenant’s decision to keep such a large dog in an apartment, no matter how much the dog helps him deal with anxiety. It’s not just for the dog! Newfoundlands are known for their gentle natures, but they are social dogs and can become anxious and unhappy if left alone – then they bark and whine (and can also become destructive).
However, this is not the topic at present. Before we get into how the tenant should handle barking and whining (and there are ways to help a dog adjust to his owner’s absence), your tenant must demonstrate that he has the right , under the Fair Housing Act (FHA), with one exception to your usual dog size rules. He must demonstrate that he is a person living with a disability and that the presence of the dog is reasonable and necessary to “allow [him] equal opportunity to use and enjoy housing” (42 USC Sec. 3604).
Allowing a large dog in a building that allows small dogs could be considered reasonable accommodation under the FHA or the Americans with Disabilities Act (ADA), if several factors are met.
First, the person requesting the accommodation must have a disability, which is described as a “physical or mental impairment that significantly limits one or more… major life activities.” An anxiety disorder is recognized as a disability by the FHA. These disorders are the most common mental illness in the country, affecting nearly 20% of the American adult population. But, you don’t have to take your tenant’s word for it that they’re part of that 20% (many Americans suffer from a form of anxiety — stressed by a daily flood of bad news: inflation, shortages, floods, hurricanes, famine, war and political polarization). You can request a letter from their attending physician stating that the tenant has a disability and describing, in general terms, how this disability affects a major life activity. The note should also state that Riley’s presence is necessary to alleviate some of the symptoms of the disability.
The law focuses on the renter’s need for the animal, not on whether the creature in question is a “registered” emotional support animal or a specially trained service dog.
A service animal is a dog (or, in special circumstances, a small horse) that has been trained to work or perform tasks for a person with a disability. Guide dogs that help the blind are service animals. Service dogs can also be trained to help people who are deaf or hard of hearing by alerting them to sounds. Some service dogs are trained to help people with psychiatric disabilities by reminding them to take prescribed medications. Crisis response service dogs may be able to predict when the dog owner’s seizure is about to occur, and dogs trained to assist those with mobility issues by providing balance and stability , picking up and carrying objects and pulling wheelchairs. Trained assistance dogs are permitted as an exception to a ‘no dogs’ apartment policy. Under the ADA, they are also permitted in any public accommodation.
An emotional support animal, on the other hand, can be any animal that helps a person cope with a disability. An emotional support animal does not need to receive special training; it can be a dog, a cat, a cockatoo or even a pot-bellied pig. Emotional support animals should not be allowed in public places. In 2018, the US Department of Transportation became so frustrated with people trying to bring untrained (and sometimes questionable) emotional support animals into aircraft cabins, that they banned all such animals from cargo. Trained assistance dogs, however, continue to have access to coach travel (or even first class).
Critics of the current state of the FHA’s treatment of support animals say the law has gone too far: Some creatures purported to be “emotional support animals” are simply beloved pets. As a quartet of professors and psychologists recently wrote, there is a distinction “between someone who is emotionally attached to the company of their pet (which might include most pet owners) and who appreciates the company of it (which could include most pet owners) and individuals who must rely on the animal to reduce or alleviate disability-related symptoms.The presence of a large, affectionate dog may well be comforting; the question is whether the dog is necessary for your tenant to enjoy the apartment. For example, if he suffers from severe anxiety, he might not be able to sleep without Riley. This is something you a note from a doctor or therapist could verify.
These same critics claim that many pet owners, with or without actual disabilities, have attempted to pass off their pets as emotional support animals, often with the help of websites that offer questionable “permissions” and a ” ESA registration” legally irrelevant.
The problem has become serious enough that the Michigan House of Representatives recently passed legislation to address it. (The bill did not pass the state Senate.)
The proposed law would impose several requirements before a health care provider can certify that a person with a disability needs an emotional support animal: the person seeking certification must have had a “provider-patient” relationship with the health care provider for at least 30 days; the health care provider must determine that the person with a disability needs the emotional support animal; and the health care provider should reasonably expect to “provide the patient with follow-up medical care to monitor the effectiveness of the use of an emotional support animal.” Additionally, a health care provider – a term that includes doctors, psychiatrists, psychologists, social workers, nurses, etc. .”
The proposed law also cracks down on the cottage industry in ESA “registrations”. Those who sell a purported ESA registration, tag, vest, etc., without first informing the buyer, in writing, that the registration is essentially meaningless may be subject to a $1,000 fine. The law would also make it a crime to falsely claim that an animal is a service animal or a service animal in training.
Although the bill has received support from landlord groups, tenant communities, and college housing, it is strongly opposed by the Michigan Department of Civil Rights, the Fair Housing Center of Metro Detroit, and the Michigan Poverty Law Program, among others.
Critics of the bill say the proposed law is too restrictive: Certification requirements could prove unduly burdensome for low-income and vulnerable populations, denying much-needed support animal assistance to Michiganders who live with them. a real handicap but cannot meet the financial or other demands of an established and ongoing patient-provider relationship. A section of the state bar opposes the bill because it does not align with current federal regulations published by HUD. Others who oppose the passage of the bill simply say that the additional requirements are unnecessary. The FHA and ADA already provide sufficient protection. Landlords, they say, have the right to refuse requested accommodation if it is unreasonable or presents an undue burden or hardship.
Assuming your tenant arrives with a note from a health care provider indicating that his anxiety has reached the level of disability and that he needs his (large) dog to have “equal enjoyment of the premises”, he can be entitled to an exception to the law. no-big-dogs rule, if his request is reasonable. Whether a particular request is reasonable depends on the facts of the case. For example, if Riley knocks down children and bites them, he could be considered a threat to the safety of others, and allowing him to stay could be unreasonable. Or, if Riley is exceptionally loud (compared to small dogs) such that allowing your tenant to keep him will deprive other tenants of the enjoyment of the premises, the request may be unreasonable. But, before you make that decision, you should give your tenant a chance to figure out how to keep the Riley from racketeering while he’s at work.
Troy’s attorney, Daniel A. Gwinn, has a practice focused on employment law, civil rights litigation, estates, trusts and estates. Contact him with your legal questions at [email protected] or visit the website at gwinnlegal.com. “Ask the Lawyer” is for informational purposes only and should not be considered legal advice.