Can I Keep My Dog? Part II
Saturday, we received this question:
"My brother Rick has some learning disabilities that have been diagnosed as an emotional disability. Because of this condition, he can only maintain a minimum wage job, but still takes care of and loves his dog. Now, his landlord told him to get rid of his dog. Is there anything I can do to help him?"
Name withheld Havelock, Iowa
We looked to the Michigan State University College of Law, Animal Legal & Historical Center for an answer and posted part of the response here. Today we will conclude their analysis of the problem.
"In addition, under Sec. 504, the tenant must be "otherwise qualified" to receive the benefit, the tenant must be denied the benefit solely because of the disability, and the program must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas. Lastly, only housing authorities that receive money from the federal government, such as public housing projects, are subject to Sec. 504 provisions.
Unlike Sec. 504, the FHAA applies to both public and private housing. Under the FHAA, in addition to establishing a qualifying disability, the tenant must also establish that the landlord knew of the tenant's disability, waiving the "no pets" policy was necessary to allow the tenant to equally use and enjoy the dwelling, and the landlord refused to waive the "no pets" policy. Also, the tenant must request a waiver of the "no pets" policy from the landlord, explaining that he or she has a mental disability and needs the emotional support animal to lessen the effects of the disability. A note from a physician to this effect is often used to inform the landlord of the disability and request the accommodation. Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link between the animal and the disability.
Under both statutes, a mentally disabled person must meet two standards when arguing a waiver of a "no pets" provision as a reasonable accommodation: (1) the accommodation must facilitate the disabled person's ability to function; and (2) the accommodation must pass a cost-benefit balancing test that takes both parties' needs into account. The former can be established by evidence showing that the handicap requires the companionship of the animal, the disabled person has an emotional and psychological dependence on the animal, or that the animal lessens the effects of the disability by providing companionship. The supporting evidence often comes from a medical professional. The latter requires an analysis of the benefits to the tenant as compared to the burdens placed on the landlord. Generally, there are minimal burdens placed on a landlord if required to waive a "no pets" policy. Especially because the number of mentally disabled persons who can qualify for waiver of a "no pets" provision is small, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy because of extreme burdens. In addition, there must be no other reasonable alternatives to lessen the effects of the disability, other than the animal.
Courts have not restricted the types of species that qualify as reasonable accommodations. Examples of species that have been allowed as reasonable accommodations include dogs, birds, and cats. Also, courts have held that animals do not need to have professional training or be certified as an emotional support animal. Evidence establishing the nexus between the disability and the animal is sufficient.
Even if a person qualifies for a reasonable accommodation under the statutes, a landlord does not have to waive a "no pets" policy if doing so would cause a great financial or administrative burden, if a "no pets" rule is a fundamental part of the housing program, or if the disabled person is not able to follow general rules of tenancy. However, to date, a landlord has not been able to refuse waiving a "no pets" policy to a qualifying mentally disabled person because of any of the above reasons.
In addition, if a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the tenant does not qualify under the statutes and the landlord does not have to allow the tenant in housing or waive a "no pets" policy.
Given the known benefits of emotional support animals for persons with mental disabilities, it is important for the legal community to assist mentally disabled persons so that they are aware of the their rights and ensure that those rights are enforced. "
As always, contact your local attorney for specific advice, but under the right set of circumstances. your brother may be allowed to keep his dog.
Good luck to your brother and his dog.
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