Nineteenth-century French composer Camille Saint-Saens wrote “Carnival of the Animals” as a humorous respite after completing his third symphony. Although Carnival of the Animals has delighted children for a century, Saint-Saens didn’t allow the piece to be performed during his life out of concern it would harm his reputation as a serious composer.

Carnival of the Animals isn’t performed with live animals. Instead, various instruments are used to represent 14 animals, including a lion, donkey, tortoise, elephant, and swan.

Domestic dogs and cats aren’t among the animals portrayed, but that hasn’t stopped these popular house pets from being a part of orchestra concerts. Last year, a stray cat wandered onto stage at a concert in Turkey, visiting the first violins, then the cellos and bass, before hopping onto the podium with the composer.

Three years earlier, also in Turkey, a stray dog wandered onto the stage while the Vienna Chamber Orchestra was playing Mendelssohn’s Italian Symphony. After being acknowledged by the concertmaster, the dog settled in to enjoy the music.

After the initial surprise, the concert-going dog and cat were welcomed with smiles and laughs. But the same isn’t always true of service animals and emotional support animals. Even though the Fair Housing Act (FHA) requires that tenants be permitted to have emotional support animals without an additional charge, multifamily landlords don’t always welcome those animals with open arms.

Recently, the Department of Housing and Urban Development (HUD) filed a charge of discrimination claiming (Charge) claiming Missouri landlord Dahms Investments, L.L.C. (Dahms) violated the FHA by requiring a prospective tenant to pay a pet deposit for her emotional support animal. This article discusses the Charge and how landlords can avoid running afoul of the FHA when leasing apartments to tenants with emotional support animals.

What Does HUD Claim the Landlord Did Wrong?

The Charge claims that the complainant went to Dahms’ rental office in August 2019 and filled out a rental obligation. When the complainant reached the part of the application that asked about pets, she told Dahms’ property manager she had an assistance animal. The property manager replied that the complainant would have to pay a $400 pet deposit for the animal, even though the complainant had a 2016 physician’s letter recommending the animal.

The complainant contacted Dahm and the manager later in the day to inform them that the FHA says they can’t charge a fee for an assistance animal. The manager responded that only blind and deaf people may have assistance animals. The manager then told the complainant she did not look disabled and asked her what her disability was.

The Charge claims Dahm violated the FHA by making statements that reflected disability discrimination, by denying the complainant’s request for a reasonable accommodation, and by discriminating against the complainant due to her disability.

What Housing Is Covered by the Fair Housing Act?

Most residential landlords must comply with the FHA disability discrimination provisions. The limited FHA exceptions that could apply to accommodations for emotional support animals include:

• Owner-occupied property–If the owner owns a dwelling with four or fewer units and lives in one unit, that property isn’t subject to the FHA.

• Single-family homes leased without a broker–If no real estate broker is used, an owner may rent a single-family home without complying with the FHA. There are limitations to this exception, including the number of homes the landlord may own.

Landlords also may be subject to state and local fair housing laws. Those laws may be broader in scope and cover landlords or properties that aren’t covered by the FHA.

What Does the Fair Housing Act Require of Landlords?

The FHA requires that a landlord provide reasonable accommodations to disabled individuals, including those who use assistance animals. These laws supersede any “no pets” requirements otherwise imposed by the landlord.

Landlords may not charge a pet fee or deposit for assistance animals. This doesn’t mean that the landlord can’t charge tenants for the cost of repairing damage the animals. Tenants are still are responsible for damage caused by their assistance animals. Tenants must still follow the landlord’s rules, such as those requiring that dogs be kept on leash or that tenants pick up and properly dispose of dog feces.

If a tenant or prospective tenant requests that the landlord accommodate them by allowing an assistance animal, the landlord may evaluate the request using these questions:

• 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 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. Likewise, 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. But the landlord may not ask about the individual’s medical condition.

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 the landlord may not ask the person what condition they have.

If the assistance animal meets the above requirements, then under most circumstances, the landlord must allow it. However, the landlord need not accommodate the assistance animal if:

• The accommodation would provide an undue financial and administrative burden to the landlord.

• 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.

Whether an assistance animal poses a direct threat or would cause substantial damage must be based upon the specific animal. The landlord isn’t permitted to speculate or base a decision on experience with other animals.

What the Landlord Should have Done

The Dahm Charge hasn’t been decided by a judge. However, based upon the Charge, here’s what Dahm’s manager should have done differently:

• Since the complainant’s letter was nearly three years old, the manager could have asked for an updated letter. The complainant provided the investigators with such a letter.

• Dahm should not have asked about the complainant’s disability or commented about whether she appeared disabled.

• Dahm should not have charged the complainant a pet deposit.

• Dahm could have required the complainant to sign a pet addendum in which she agreed to follow community rules, including picking up her dog’s droppings and keeping her dog on a lease. The addendum could also require the complainant to pay for any damage caused by her dog.

Initially, the dog and cat weren’t welcome to attend the concerts in Turkey, but they quickly became welcome audience members. Had Dahm complained with the FHA, like the audiences in Turkey, Dahm may have found that like the dog and cat in Turkey, the complainant’s emotional support animal was a welcome addition to the community.

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.