Q: I am a licensed New York real estate salesperson and I represent a tenant who requires the assistance of an animal to alleviate her anxiety. The tenant’s building has a "no pet policy" and she did not make a request for a deviation from this policy when she first moved in. Must the landlord permit a variance in the building’s prohibition on animals even though she did not disclose her need at the inception of her residency?
A: Yes, the landlord will likely be required to permit a variance from the building’s pet policy. Under the federal Fair Housing Act ("FHA"), housing providers must allow for a variance in their "rules, policies, practices, or services," if necessary to afford a person with a disability full use and enjoyment of the housing. This includes the use of an Assistance Animal, which the FHA defines as any animal that is "necessary" because of a person’s disability. Consequently, residents and prospective residents do not need to disclose their need for an Assistance Animal at any specific time or in any particular manner. The community’s policy on pet ownership, as well as the resident’s timing or method of making the request, is irrelevant in evaluating whether the accommodation should be made.
A request, made by or on behalf of a person with a disability, to accommodate an animal that is necessary because of that person’s disability should only be denied if the accommodation would be unreasonable. The reasonability of a request is determined on a case-by-case basis. Factors considered include, the cost of the accommodation, the resources of the housing provider (the owner of the property), the benefit to the disabled person, and the availability of alternatives.
Important Tip: It is important to note that the FHA protects the use of Assistance Animals, not only Service Animals. Assistance Animal is a broader term than Service Animal. A Service Animal, as defined by the Americans with Disabilities Act ("ADA"), may only be a dog (or in a few instances a miniature horse) that is trained to do specific tasks for a person with a disability. For example a Guide Dog for a blind person would be considered a Service Animal. On the other hand, an Assistance Animal, as defined by the FHA, can be any species of animal, including but not limited to dogs, and the animal does not need to be specifically trained or certified in any particular way. This classification includes Service Animals, but also includes companion animals, emotional support animals, therapy animals, etc. For example, a bird who alleviates a person’s depression could qualify as an Assistance Animal, even though it would not qualify as a Service Animal.
The FHA and ADA should not be confused because they generally apply to different physical locations. The FHA "prohibits discrimination in the sale, rental, and financing of dwellings," while the ADA prohibits discrimination in "employment, transportation, public accommodation, communications, and governmental activities."
The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP