Co-Authored by Tanner Wadsworth, rising 2L at Columbia Law School
This blog is not to be considered legal advice. It refers specifically to issues regarding the law of the State of Texas at the time it was written and it is not guaranteed to be an exhaustive outline of residential real estate / service animal law in Texas.
Many leases covering residential homes and apartments do not allow tenants to keep pets, but what happens when a tenant informs his landlord that he lives with a service animal?
Almost sixty percent of complaints filed under the Fair Housing Act (FHA) stem from requests for reasonable accommodations. These requests occur when tenants with disabilities ask their landlords for special exceptions to the lease agreement or property rules to help accommodate their disabilities.
A good portion of these requests involve service or assistance animals. Assistance animals are not considered pets under the FHA. They are specifically trained to do work, perform tasks, assist, and provide therapeutic emotional support for individuals with disabilities. Service animals must be allowed in most public buildings, and reasonable accommodations should generally be made for them in private establishments such as rental properties.
Considering the volume of FHA complaints that these requests generate, landlords in Fort Worth, Texas and elsewhere should be careful about the process they use to approve or deny them.
Guidance from the Department of Housing and Urban Development (HUD) provides some advice to avoid complaints and litigation.
Before the Lease is Signed
The HUD Occupancy Handbook states that "It is unlawful for an owner to make an inquiry to determine whether an applicant, or any person associated with the applicant, has a disability or to make an inquiry about the nature or severity of a disability." Service animals are not to be considered pets as they are only available to those with mental or physical disabilities. What this means is that it’s impossible to ask whether a potential tenant will be using a service animal without indirectly asking him or her to declare a disability--and that is not allowed under the FHA.
Further, the FHA prohibits housing discrimination based on a tenant’s disability. If a landlord asks screening questions about service animals as part of the application process, and then makes decisions about granting tenancy based on that application, he or she could be liable for a discrimination lawsuit under the FHA.
Essentially, when it comes to the disclosure of a tenant’s disability, the ball is in the tenant’s court. If the tenant chooses to bring up the issue of service animals during a pre-lease discussion, they may, but landlords should not include questions about them in rental applications or screening forms.
After Signing the Lease
It is the tenant’s responsibility to ask the landlord for a reasonable accommodation. If the lease prohibits pets, and a landlord discovers that a tenant is living with an animal, unless that tenant has already asked for an exception, the animal is presumably a violation of the lease. The landlord would then be free to enforce the lease and its penalties.
But what if the tenant says that it’s a service animal and requests an accommodation? There is no formal process for requesting an accommodation. Any request that a tenant makes for a special accommodation for a disability, whether verbal or in writing, is sufficient under the FHA.
Once a landlord is aware that an animal is allegedly a service animal, he or she will need to decide whether to grant the requested accommodation. There are a few questions that landlords can ask to help determine whether the request is being made in good faith:
Is the animal specifically trained to help with a disability?
What specific tasks does it perform that help with the disability?
If the tenant answers that the animal is not specifically trained to help with a disability, and does not perform any specific tasks, the animal may not fit the definition of a service or assistance animal, and the landlord may be able to deny the accommodation. Landlords should not ask any questions beyond these, and should not request proof of a disability or special training.
If the animal fits the definition of a service animal, and the accommodation request is reasonable, the landlord should grant the request. The animal’s owner will be responsible for any damage the animal causes to the property. Because service animals are not pets, the landlord may not legally charge a deposit, fee, or surcharge in exchange for granting the accommodation, even if the property would normally require an additional pet deposit.
This article is not to be considered as legal advice and. of course, every situation is different. If you have questions about service animals, a business attorney in Fort Worth, Texas can help to provide professional legal advice tailored to your situation.
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