By Joe Olivieri assistant editor for Texas REALTOR®
Note: The original version of this article stated that documentation for support animals is valid for 12 months and that tenants must go back to their healthcare providers to ask if they still endorse the support animal for the disability. However, there is no obligation on the tenant to renew the reasonable accommodation documentation.
If the tenant’s disability is not readily observable or the documentation does not include information about a chronic disability-related need for the assistance animal, a landlord may contact the healthcare provider that provided the documentation after 12 months to assess whether the healthcare provider still advises the need for the assistance animal. There is no law that requires the tenant to renew the accommodation request on a yearly basis. Furthermore, if a landlord were to implement a practice of re-assessing reasonable accommodation requests, the landlord should include information about the re-assessment in the landlord’s written criteria or policies to apply to future requests. A landlord should not re-assess any accommodations the landlord has already granted prior to implementing such a policy.
Some tenants have valid requests for assistance animals. Others are just trying to get around your pet policy.
For many years, though, landlords didn’t have clear guidance on what counted as an assistance animal or on what grounds they could deny requests.
In 2020, the U.S. Department of Housing and Urban Development (HUD) established new guidelines for housing providers, animal owners, and medical providers regarding assistance animals in housing.
Brian Birdy explained HUD’s Assistance Animal Notice during a Texas REALTORS® legal webinar. The broker/owner of PMI Birdy Properties in San Antonio was the 2018 president of the National Association of Residential Property Managers.
“Let’s look at what we’re dealing with as property managers,” says Birdy. “Know that 60% of residents come with either a pet or an animal. Of that group, only 9% are legitimate assistance animals. There is still a massive abuse because property managers don’t know the rules or they are scared to challenge when someone says I have one.”
Know Your Animals
According to HUD’s Assistance Animal Notice, all animals that are not assistance animals are considered pets for purposes of the Fair Housing Act. A landlord may prohibit pets. If a landlord allows pets, you should list pets in the Pet Agreement (TXR 2004), and you can charge a pet deposit and monthly fee.
An assistance animal is an animal that works, provides assistance, or performs a task for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. Birdy lists assistance animals on the residential lease itself as occupants. You cannot charge fees for an assistance animal.
Internet certificates are no longer sufficient. Written proof must come from legitimate, licensed healthcare providers who have personal knowledge of the tenant’s medical conditionBrian Birdy
HUD recognizes three types of assistance animals:
Service animals in Texas are dogs trained for a needed task related to a disability. They do not require written documentation. You can ask tenants: Is this animal required because of a disability, and what work or task has the animal been trained to perform? If the first answer is yes and the work has been identified, you must grant the tenant’s request, Birdy says. No further inquiry or documentation is required.
Support animals—also called emotional support animals, therapy animals, or companion animals—must have written documentation defining a tenant’s disability and a disability-related need for that specific animal. No special training is required.
Support animals must be animals that are commonly kept in households: dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, or other small, domesticated animals traditionally kept in homes for pleasure, Birdy says. Support animals cannot be reptiles (except turtles), barnyard animals, monkeys, kangaroos, or any other non-domesticated animals not considered common household pets.
It does not matter what you think of the particular animal in question if the tenant can produce valid documentation. If a healthcare professional says that specific animal supports a tenant’s disability, that animal is a valid assistance animal under HUD guidelines and you must treat it as such, Birdy says.
Unique animals are individually trained to do work or perform tasks that dogs cannot. A healthcare provider must confirm that allergies prevent the person from using a dog, or without the animal, the symptoms or effects of the person’s disability will be significantly increased, according to Birdy.
He adds that accommodation requests for unique animals are rare. An example might be a specially trained monkey.
Get the Proper Documentation
The online screening service Petscreening reviewed more than 48,000 reasonable accommodation requests from 2018-2020. Sixty percent did not meet HUD guidelines.
You may be able to deny the reasonable accommodation request on the grounds of a lack of documentation.
A tenant may have multiple assistance animals, but each must have an individual assessment and serve a distinct and different need relating to the disability, Birdy says. For example, a tenant may have a guide dog and a dog that warns the tenant about seizures.
“Many people think they can throw a bunch of animals on one letter and that they all can be support animals,” he says. “You have to define the difference for each animal. This has led to holding more people accountable than anything else, I believe. This has also led to a lot more non-approved requests, authorized and supported by HUD, because these are their rules.”
Certificates printed off the internet are no longer sufficient. The certificates do not document the disability and the need for the specific animal. Written proof must come from legitimate, licensed healthcare providers who have personal knowledge of the tenant’s medical condition, according to Birdy.
Tenants do not need to meet face-to-face with healthcare providers to meet the personal knowledge criteria. Online consultations have become commonplace during the COVID-19 pandemic, he says. Assistance Animal Notice also tells animal owners what information they need to provide to healthcare providers to meet the standard.
They can’t bring a horse or a giraffe or a peacock anymore, but if it’s a dog or a cat, and they get the proper documentation and it is defined as an assistance animal, there is no stopping them no matter what your rules are.
If tenants cannot produce the documentation, the support animal stops being a support animal and gets classified as a pet. The pet can continue to live on the property if the landlord and lease allow it; the landlord may charge pet fees.
“We had a really good one in which the letter looked valid. We called the doctor because that’s part of the process. She said, ‘I wrote that letter, but I wrote it three years ago and I no longer support it. I haven’t seen this person in three years.’ So the document had an altered date—that’s fraud.”
Once fraud has been identified, animal owners can try to appeal the decision but they cannot get a new medical letter. Other examples of fraud include fake letterheads, forged signatures, fabricated medical notes, and cut-and-pasted names.
Breed restrictions can apply to pets but not to assistance animals. The five most-approved assistance animals are the breeds everyone wants to restrict, Birdy explains. If the presence of a certain breed could cause a loss of insurance on the property, the landlord should first consult with the insurance company or an attorney before denying the assistance animal request.
If a dog meets the criteria, it cannot be denied because of breed or weight, Birdy says. “They can’t bring a horse or a giraffe or a peacock anymore, but if it’s a dog or a cat, and they get the proper documentation and it is defined as an assistance animal, there is no stopping them no matter what your rules are.”