Many people are familiar with service and assistance animals and the fact that their owners have specific legal rights. But when it comes to identifying which animals are service animals, which are emotional support animals, which are simply pets, and how to handle each, questions tend to arise. AAR’s Legal Team has prepared this guide to help housing providers better address disability-related animal requests. Readers should note that this information does not constitute legal advice, and any questions about disability-related requests you’ve received as a licensee should be discussed with an attorney.

The Americans with Disabilities Act (“ADA”), Fair Housing Act (“FHA”), and Section 504 of the Rehabilitation Act (“Section 504”) all prohibit discrimination based on disability status and require certain protections for individuals with disabilities. Collectively, the laws require that housing providers^[1] grant reasonable accommodation(s) and modification(s) to people who need them to have “equal opportunity to use and enjoy a dwelling.”^[2]

An individual with a disability may request accommodation(s), modification(s), or both, to help him/her have an equal opportunity to enjoy their dwelling. An accommodation is a change in a rule, practice, or service. An example of an accommodation is agreeing to change or waive an apartment complex’s parking policy so that a tenant with a disability that impacts her mobility can park closer to her unit. In the context of animals, examples of accommodations include but are not limited to waiving a “no pet” policy, waiving or amending a pet deposit, and waiver of a breed restriction policy. A modification, on the other hand, is a change made to the property itself. An example of a modification is installing a wheelchair ramp at a property that previously only had stairs.

It is important to note that a housing provider is not required to grant all requested accommodations and modifications. Instead, housing providers are required to grant reasonable requests. The decision of whether a request is reasonable considers all the circumstances, such as the extent/cost of the request, alternative options, the financial situation of the tenant, and any other relevant factors.

If you are unsure whether a requested accommodation or modification is reasonable under the circumstances, you should always consult an attorney. Although an attorney does come at a price, the price for violations of disability protections is far larger. Penalties for violations can include significant fines and fees, regulation and monitoring by governmental agencies, and mandatory education.

Housing providers are not permitted to charge fees for normal wear and tear caused by service or emotional support animals. However, housing providers may charge for any damage beyond normal wear and tear that the animal causes, whether to the interior or exterior of the property. Housing providers may also require that the individual with a disability provide for the animal’s feeding, maintenance, and veterinary care.

No. While housing providers are required to grant reasonable requests related to service animals, the animals do not have an absolute right to remain on the property. If the animal threatens the health and safety of others, or if the owner refuses to or cannot care for or control the animal, the housing provider is not required to allow the animal to remain on the property. If you encounter such a situation in your capacity as a licensee, you should consult an attorney.

If an individual with a disability requests animal-related accommodations or modifications, the housing provider must first determine if the animal qualifies as a service animal or emotional support animal (or if it is just a pet). If it is a service animal or emotional support animal and the request is reasonable, then the housing provider must grant the request. If, however, the animal is just a pet, the housing provider is not required to grant any requests related to it.

AAR has created the following flowcharts to help you determine if a particular animal is a service animal, an emotional support animal, or neither.

• Requests related to dogs or miniature horses – Dogs and miniature horses can both be service animals, emotional support animals, or simply pets. Start with “Flowchart I: Dogs and Miniature Horses”.
• Requests related to any other animal – Any other type of animal can be an emotional support animal or a pet (not a service animal.) Start with “Flowchart II: Other Animals”.

1. Is it easily apparent that the dog/miniature horse is trained to do work or tasks that benefit a person with a disability? (For example, a guide dog for a blind person.)
   1. If yes – The animal is a service animal. If the requested accommodation/modification is reasonable, it must be granted.
   2. If no – Go to Q2.
2. You may ask the individual, “Is the animal required because of a disability?”
   1. If yes – Go to Q3.
   2. If no – The animal is not a service animal. Go to “Flowchart II: Emotional Support Animals.”
3. You may ask the individual, “What work or tasks has the animal been trained to perform?” (Note: the animal must be trained to perform a specific task that is directly related to the disability (e.g., a dog that can detect blood sugar spikes for a person with diabetes)
   1. If the work/tasks are identified – This is a service animal. If the requested accommodation/modification is reasonable considering all surrounding circumstances, it must be granted.
   2. If none – The animal is not a service animal. Go to “Flowchart III: Other Animals.”

NOTE: The housing provider may not ask for an explanation or documentation of the individual’s particular disability, nor may the housing provider request documentation which proves that the animal is a service animal.

This flowchart should be used for 1) a dog or miniature horse that does not qualify as a service animal using Flowchart I above, and 2) any other species of animal that the owner is claiming as an emotional support animal.

1. Has an accommodation or modification been requested, whether orally or in writing? (NOTE: This request can be made by the individual, another legal resident of the dwelling, or an authorized representative.)
   1. If yes – Go to Q2.
   2. If no – Housing providers are not required to grant accommodations/modifications that have not been requested.
2. Does the individual have a readily observable disability, or does the housing provider already have information that supports that the individual has a disability?
   1. If yes – Go to Q4.
   2. If no – Go to Q3.
3. You may ask the individual for information that supports that the person seeking the accommodation/modification has a disability. Such information could come from a diagnosis from a physician, but could also include a determination of disability from federal, state, or local government, proof of receipt of disability benefits or services, eligibility for housing assistance due to a disability, or information from a social worker that supports the presence of a disability.
   1. If provided – go to Q4.
   2. If not provided – The housing provider must give a reasonable opportunity for the information to be submitted, but if it is not submitted, the request does not have to be granted.
4. You may ask the individual for information that reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability. (Note: a printed “emotional support animal” certificate from the internet is not sufficient. However, a letter from a telemedicine provider describing the assistance the animal provides is sufficient. Documentation could come from a healthcare provider or from a source similar to those listed in Q3.)
   1. If information is provided – Go to Q5.
   2. If no information is provided – The housing provider must give a reasonable opportunity for the information to be submitted, but if it is not submitted, the request does not have to be granted.
5. Is the animal commonly kept in households?
   1. If yes – If the requested accommodation/modification is reasonable, it must be granted.
   2. If no – Go to Q6.
6. Has the individual demonstrated a disability-related therapeutic need for the unique animal? (For example, this type of animal is trained to do activities that another animal cannot do, or the individual is allergic to dogs, etc.)
   1. If yes – If the requested accommodation/modification is reasonable, it must be granted.
   2. If no – If there is not a disability-related need for the individual to have this type of animal, the request does not have to be granted.

You may be thinking, “How do I prevent individuals from lying about some of these questions when I can’t ask for documentation?” Unfortunately, you cannot prevent everyone from lying, just like you can’t prevent all bad actors in other realms of your business. That being said, the penalties for denying an accommodation/modification when it should have been granted are quite steep, including significant financial penalties and mandatory education, monitoring, etc. From a risk management perspective, it is better to err on the side of caution with prospective tenants and home buyers than to find yourself in violation of disability laws.