This, of course,
is not a new topic. Our “Legal-Line” inquiry line gets lots of calls week-in and
week-out from Brokers, (many of whom are landlords or business owners
themselves), confused as to how they should treat parties either attempting to
rent, renting or coming into their businesses with “service” or “comfort”
animals.
So, we first look
at which law generally applies to these accommodations. The Americans with
Disability Act (ADA) is certainly first to come to mind as to “service
animals” in public places. I will not spend time in this short article to
discuss this Act as it focuses mainly on matters of service animals in public
places. Generally, the Washington State Human Rights Commission enforces
matters of ADA at the state level, notwithstanding it is a federal law.
Enforcement, to a great degree, has been focused on education for an offender
as many transgressions are innocent and not intentional. That has worked well
in this writer’s opinion.
The other Federal
Statute that applies is the Fair Housing Act (FHA). Due to differences in State
and Federal law, it is difficult to know how to conduct oneself as a residential
landlord in Washington about “service” or “comfort animals” in residential
housing.
Service animals
have historically been regulated by the State of Washington Human Rights
Commission, but because of a difference in definition in State law and Federal
law, The State of Washington Human Rights Commission no longer has authority in
regards to residential housing matters. HUD has full enforcement powers.
Their approach is anything but educational. They seek steep fines and penalties
exceeding at times $10,000.00 per violation.
Under Federal law
(FHA) there is no difference between a “service animal” and a “comfort animal”
or even an “emotional support animal”.
See the graph
below for an outline of FHA guidelines under the federal regime:
Fair Housing Act
(FHA)
*****Training
No, not necessarily. Under the FHA, the person with a disability who is
requesting the assistance animal must demonstrate a disability-related need for
the animal, but there is no requirement that the animal be trained.
*****Certification
No. Even if the assistance animal is a reasonable accommodation, the
housing entity may not require certification to verify the assistance animal’s
status as such.
*****Medical
Documentation
Sometimes. A landlord may request medical documentation that a tenant has
a qualifying disability under the Fair Housing Act. In addition, the medical
professional should indicate the benefit that the assistance animal provides.
This documentation cannot be requested when the disability and need for the
assistance animal is clear.
*****Comfort/Emotional
Support Animals
Yes. Under the FHA, housing entities must admit any type of “assistance
animal,” a term which includes service animals as well as comfort animals or
emotional support animals. In other words, training is not a requirement for an
assistance animal.
*****Service
Animals-in-Training
Yes. The Fair Housing Act (FHA) does not require an animal to be trained,
or be in training, to serve as an assistance animal for a person with a
disability living in housing covered by the FHA. As such, service
animals-in-training could be allowed as a reasonable accommodation under the
FHA.
*****Enforcement
Entities
Department of Housing and Urban Development (HUD):
Disability Rights in Housing 800-669-9777 (V) 800-927-9275 (TTY)
(My thanks to the Northwest ADA Center for
the use of their information above in this article)
There is a
lot of abuse occurring in the marketplace. At this point, there has not been any
changes in the process that still allows many tenants to abuse their landlords
by forcing landlords to accept either, before obtaining tenancy or even
afterward, a “comfort animal” of any kind or description. I am sure my readers
have heard that laundry list of potential comfort animals.
Today all the
tenant needs to do is have a signed note from a medical professional and, to a
great degree, the landlord will have to allow the animal and not even be able
to charge a fee for doing so. Why? The animal is not a pet. It is exempt from
any pet fee or any special fee whatsoever. The tenant is, however, liable for
any damage caused by the animal.
Presently
landlord associations in Washington are working with state lawmakers to change
the requirements necessary to obtain comfort animal status as well as getting
the regulatory authority back at the state level.
I have talked
with local associations’ counsels and I do not anticipate a prompt resolution
of this matter.
Suffice it to say
that presently the landlord will continue to be abused by abusive tenant
activity, but there will possibly be some light at the end of the tunnel
sometime in the future. We will continue to report updates.
