Camille Saint-Saens prohibited performance of his comedic suite Carnival of the Animals during his lifetime. First performed 100 years ago, the suite consists of 14 movements, each of which is a musical characterization of an animal. Saint Saens’ parade through the zoo consisting of lions, hens and roosters, wild donkeys, tortoises, elephants, kangaroos, an aquarium, a cuckoo, an aviary, and a swan as well as less conventional zoo animals: animals with long ears, pianists, and fossils, has become a favorite for children’s concerts.

Carnival of the Animals' satirical characterization of pianists, constantly obsessing over technique, as equivalent to chattering animals, such as monkeys, will resonate more with adults. And if one listens closely to the “fossils” movement, one can hear themes from previous Saint-Saens works.

Sometimes, the list of animals that can provide emotional support to disabled individuals may seem as long and varied as the animals in Carnival. For instance, the Washington Post recently included a feature about WallyGator, an emotional support alligator who goes everywhere with Joseph Henney. Another unusual emotional support animal, Dexter the peacock, became famous in 2018 when an airline wouldn’t allow him to travel with his owner. And in 2020, a rabbit named Coco made the news when she flew from San Francisco to Japan with her owner – in business class, no less.

Laws regarding service and emotional support animals can be confusing to property owners—and guidance can vary depending upon the type of animal and its function. For example, recently, the Department of Housing and Urban Development (HUD) filed a charge of discrimination against Fox Run Apartments in Shawnee, Kansas, its property management company, Peterson Properties, Inc., and several Peterson employees, alleging they discriminated against a disabled man by requiring unnecessary doctor’s certifications as a condition to moving into an apartment with his 70-pound emotional support Doberman.

This article discusses the issues in the Fox Run Apartments charge, the laws property owners and managers must navigate when evaluating accommodations for service and emotional support animals, and how the requirements might vary depending upon the specific animal.

The HUD Charge of Discrimination

HUD alleges that the complainant (who I’ll call Jim) completed a rental application to rent an apartment for him, his teenage son, and his 70-pound Doberman emotional support animal on June 2, 2020. Fox Run usually prohibits pets that weigh over 25 pounds. So, with the application, Jim provided a letter from a psychiatrist at a Department of Veterans Affairs (VA) medical center stating that Jim’s mental-health-related disorder qualified as a disability under the FHA. The VA psychiatrist further wrote that a dog was necessary for Jim's mental health and prescribed a dog of his choosing to help mitigate his symptoms.

Jim followed up with the landlord several times, and on June 16, 2020, Fox Run “conditionally approved” Jim’s application and set a move-in date of June 29, 2020. For the first time, Fox Run requested an additional form called a “Reasonable Accommodation – Third Party Verification Form (Verification Form) from his physician.

The Verification Form asked three questions:

1. Is the prospective tenant disabled as defined by the FHA?

2. Based on the specific disability, does that individual require the requested accommodation exactly as stated (i.e., presumably the exact dog Jim owned) to have equal enjoyment of the premises as a non-disabled resident?

3. If asked, would you testify to this in a legal or administrative proceeding?

Jim promptly signed the authorization on the Verification Form, and Fox Run faxed it to the VA psychiatrist’s office but did not receive a response. On June 23, 2020, Fox Run informed Jim that the Verification Form must be turned in by June 26, 2020, or Jim's application would be denied. That day, Jim contacted the VA psychiatrist's office and learned that the doctor would be on vacation until June 29, 2020. After learning of the psychiatrist’s absence, Jim asked that his move-in date be delayed.

Fox Run demanded that Jim provide the Verification Form by June 26. When that didn't happen, Fox Run canceled Jim's lease. Internal notes indicate that a property management employee determined that the VA psychiatrist's initial letter was "insufficient.” Jim, who had to move out of his current apartment by June 30, was forced to obtain a different apartment at a higher cost.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) and state and local laws may apply when evaluating accommodations for all types of real estate.

The ADA requires accommodations only for “service animals” and defines "service animal" narrowly. Only dogs (and, under some circumstances, miniature horses) can be service animals. Under the ADA, service animals must be trained to do work or perform tasks for a disabled individual. ADA regulations exclude emotional support animals that aren’t trained to perform a specific task, even if they are dogs.

The ADA requires that service animals be allowed in areas of public accommodation. That means that apartment leasing offices and businesses open to the public, as well as restaurants, hotels, doctor's offices, stores, and schools, must allow service animals into any area where members of the public generally are allowed.

Only under these limited circumstances may a property owner exclude a service animal:

• The handler cannot or does not control the service animal

• The service animal is not housebroken

• The service animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated through a reasonable modification of practices or procedures.

Whether a service animal is a direct threat must be based upon the specific animal in question, not on speculation or upon experience with other animals. So, a property owner can't exclude all dogs of a particular breed based on the breed's reputation for aggression. There must be evidence that the specific service animal involved poses a threat before it may be excluded.

Fair Housing Act Requirements

In addition to the ADA, most residential landlords must comply with the FHA. The FHA requires that a landlord provide reasonable accommodations to disabled individuals who use assistance animals.

Both service animals and emotional support animals are “assistance animals” under the FHA. So, the FHA may require a landlord to allow cats, rabbits, and possibly, even peacocks or alligators, if they are emotional support animals.

Landlords who receive a request for accommodation by allowing an assistance animal should evaluate the request using these considerations:

• Whether the tenant has a disability (defined as a physical or mental impairment that substantially limits one or more major life activities)

• Does the animal work or perform tasks, provide assistance or services, or provide emotional support to the disabled individual?

• Do the animal’s services or support help one or more symptoms or effects of the disabled individual’s disability?

If an individual’s disability is not visible, landlords may ask the disabled individual for documentation of their disability and need for an assistance animal. If the disability is apparent, but the need for an assistance animal is not, the landlord may ask for documentation supporting the need for the assistance animal.

For instance, a landlord may request documentation from an individual with a mental disability who has an emotional support animal if the disability and need for the animal are not apparent. But a landlord may not ask a blind individual with a guide dog for evidence of the disability or need for the service animal. For example, if an individual has a mobility impairment and uses a wheelchair, but the need for a service animal isn't apparent, the landlord can inquire only about the need for the service animal.

If an individual qualifies for an accommodation by having a service or emotional support animal, the FHA supersedes any "no pets" or pet size or type limitations generally applicable to tenants. Landlords may not charge a pet fee or deposit for service or emotional support animals. However, tenants are responsible for damage caused by their assistance animals.

The landlord need not accommodate an assistance animal if:

• The accommodation would provide an undue financial and administrative burden

• The accommodation would fundamentally alter the nature of the landlord’s services

• The specific assistance animal poses a direct threat to the health or safety of others, and that threat cannot be reduced or eliminated by another reasonable accommodation.

• The specific assistance animal would cause substantial damage to the property of others, and that damage cannot be reduced or eliminated by another reasonable accommodation.

As with the ADA, whether an assistance animal poses a direct threat or would cause substantial damage must be based upon the specific animal in question, not on speculation or upon experience with other animals.

What Does HUD Say Fox Run Apartments Did Wrong?

HUD says Fox Run Apartments’ request for the second form was unnecessary. Therefore, HUD alleges the refusal to rent to Jim absent the form was unlawful discrimination based on his disability.

In January 2020, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued Notice 2020-01 (FHEO Notice), which was designed to assist housing providers and disabled individuals in assessing an individual's need for an assistance animal. At that time, HUD observed in the FHEO Notice that 60% of all FHA complaints involve requests for reasonable accommodations for assistance animals.

The FHEO Notice notes that a note from the tenant’s health care professional that confirms the person's disability or need for the emotional support animal is reliable provided the provider has personal knowledge of the individual’s condition. The HUD Charge alleges that Jim provided this information from the VA psychiatrist, but that Fox Run Apartments inappropriately considered it inadequate.

Further, the FHEO Notice notes that a housing provider can't require specific types of evidence (or, in this case, a particular form) if the information provided by the tenant meets HUD’s requirements. Specifically, the FHEO Notice does not allow the landlord to require the provider to state they are willing to testify about the individual's disability. So that portion of the landlord’s form was unreasonable.

Fox Run Apartments' objection to Jim's dog was that it exceeded the usual 25-pound limit on pet size. The FHEO Notice reminds landlords they may not limit the breed or size of a dog used as a service animal – any limitations must be specific to the dog in question. So, Fox Run Apartments wasn’t permitted to object to Jim’s dog because of its size, nor could Fox Run Apartments require that Jim's provider certify that he needed that exact dog.

The FHEO Notice treats requests for accommodations allowing emotional support animals differently depending upon the type of animal. Landlords have little to no latitude to object to animals “commonly kept in households,” such as dogs, cats, small birds, rabbits, hamsters, gerbils, guinea pigs, fish, turtles, and similar animals typically kept in the home.

For animals not typically kept in households, such as an alligator or peacock, the individual requesting the accommodation has the burden of providing documentation that a particular type of animal is necessary as an accommodation. The FHEO Notice provides the example of a monkey trained to perform tasks for a paralyzed individual. Or, an individual with severe allergies might need an unconventional animal to which they aren’t allergic.

The HUD Complaint doesn’t describe Fox Run Apartments’ defenses—and it’s uncommon that a charge would reach this point without resolution unless the landlord believed in its position. However, this case is a cautionary tale for landlords about requiring specific internal forms or limiting the size or breed of emotional support animals.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.