When your tenant gets a pet in your pet-free rental unit

Question

Apparently it won't be as easy as 1-2-3 to evict. Apparently the pet can be the owner's emotional support pet.
Read more: http://www.post-gazette.com/pg/11175/1155999-100.stm

Account Closed · Answer

One thing to remember that the article does not point out is that it is the person with the disability (or need) that has the rights, NOT the animal.

For instance, in order for a dog to be considered a service dog, not only is that dog required to be trained TO MITIGATE THE HANDLER'S DISABILITY, but the handler has to fit into the ADA guidelines of a QUALIFIED PERSON WITH A DISABILITY.
http://www.eeoc.gov/policy/docs/902cm.html
What I mean by that is: I am a qualified person with disabilities (QPWD). My dog is trained for mobility tasks, and retrieval and fetching tasks. My dog goes with me (or enables me to go) almost everyplace. She is a service dog for me. My friend cannot take my trained SD into places that do not allow pets, because she is not a service dog for that person--that person is not a QPWD.  And though I am a QPWD, I cannot take my friend's hearing dog with me, because I do not have a hearing disability.

this is a small portion of that info:

Similarly, an individual might be eligible for disability retirement but not be an individual with a disability under the ADA. Conversely, a person who meets the ADA definition of "disability" might not meet the requirements for disability retirement.

(b) Statutory Definition -- With respect to an individual, the term "disability" means

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

So besides knowing that, (and everything else at that site) it will help you to know what the MAJOR LIFE ACTIVITIES are:
902.3 Major Life Activities

902.3 Major Life Activities

(a) General -- For an impairment to rise to the level of a disability, it must substantially limit, have previously substantially limited, or be perceived as substantially limiting, one or more of a person's major life activities. There has been little controversy about what constitutes a major life activity. In most cases, courts have simply stated that an impaired activity is a major life activity. In general, major life activities "are those basic activities that the average person in the general population can perform with little or no difficulty." 29 C.F.R. pt. 1630 app.Â§ 1630.2(i).

(b) Regulatory Definition -- Commission regulations define the term "major life activities" to mean "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. Â§ 1630.2(i); see also Senate Report at 22; House Education and Labor Report at 52; House Judiciary Report at 28.

This list is not an exhaustive list of all major life activities. Instead, it is representative of the types of activities that are major life activities. Specific activities that are similar to the listed activities in terms of their impact on an individual's functioning, as compared to the average person, also may be major life activities. Thus, as the interpretive appendix to the regulations notes, "other major life activities include, but are not limited to, sitting, standing, lifting, [and] reaching." 29 C.F.R. pt. 1630 app. Â§ 1630.2(i). Mental and emotional processes such as thinking, concentrating, and interacting with others are other examples of major life activities.19

there is also more in that portion.

Many people have what are called "invisible disabilities", meaning that it is not obvious that they are disabled. When someone says they are disabled, believe them until they cannot provide the needed info and documentation.

You as a landlord have resources other than attorneys to get basic information and guidance. The ACT itself, though long, is written in generally understandable English, and needed information can generally easily be found. If nothing else, copy the ADA into a word doc so you can search it more easily.
Use the ADA hotline when you can't find the answer to your question. 
I am guessing, but there is probably online guidance re ESAs, too. You may need a lawyer. But do your homework first.

This is a broad area, and the information seems overwhelming. It gets confusing, and with the fakes that now abound, it's even more difficult.

Steve Babiak · Answer

Brad Dornish is an REI friendly attorney (and himself an investor/landlord) out of the Pittsburgh, PA area - so if he indicates that tenants have some "disability" and that a pet might be their "symptom relief", well I don't believe he's being a tenant's advocate here.  I'll see if I can get him to shed some light on this one.

EDIT: for those who did not read the link in the OP, Brad Dornish represented the landlord in the case in question here.

Kyle Meyers · Answer

"He said that legally, if tenants show that they have a disability and that a medical or psychological professional has recommended an animal, then a landlord's "no pets" policy does not apply.

Read more: http://www.post-gazette.com/pg/11175/1155999-100.stm#ixzz1QVmam0Ab
"

This is like if they had a service animal, which also is not included in a no pets policy. You can still put limits on the animal and charge for damages done. You cannot charge an extra security/pet deposit though. If your tenant tries to claim this, get them to show you the letter from their licensed doctor.

Account Closed · Answer

A (former) female friend of mine used 2 service dogs. Both at best weight about 50 pounds, but for a long time both were overweight. Though I had spent time with her, I really never saw that either dog was task trained.  She was section 8 and living in a small one bedroom apartment in a large complex. 
At various times she also had parakeets, gerbils, and some other small animals. At the time our friendship was ending she had purchased an expensive cat for an emotional support animal. then another, another, and another. She eventually had those two big dogs and 4 big cats in her small apt. Two of the cats were Maine Coon cats. Apparently the managers were not able to evict her, but finally I think, they did not renew the lease. I know that only because I see posts from her at times on another board, and she no longer lives there.

Some people are abusers, and she is one. 
If you are able to write such a contract, maybe run it by the people at the Direct Center first, maybe local disability advocacy groups, the ADA hotline, etc, before hiring a lawyer to go over it. 
I don't know if size would be appropriate, but perhaps going off the new ADA ruling of only dogs (and miniature horses) are now "legal" service animals, perhaps dogs and cats might be appropriate for ESAs. 
Something else: I do think that dogs as the only protected service animals--that may be just for use in public. I do not know if the law restricts that for only in home use or not, but I do not think it does. ie, I think I can have a service bird in my home, but can't take him in public as a service animal. I do not know how that would be judged by either ADA or Fair Housing people.

Account Closed · Answer

Google "fair housing act and emotional support animals" to find the needed informaton. 
Here's a start:
http://www.bazelon.org/LinkClick.aspx?fileticket=mHq8GV0FI4c%3D&tabid=245

http://www.bazelon.org/LinkClick.aspx?fileticket=lhyaA_hRAoE%3d&tabid=268

Definitions of Service Animal
The DOJâ€™s new ADA rules defineâ€œservice animalâ€ as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.The new rules specifythat â€œtheprovision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.â€ Thus, trained dogs are the only species of animals that may qualify as service animals under the ADA (there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals.
Read the few pages carefully.
And this, at 
http://www.state.ia.us/government/crc/docs/Factsheet%20Service%20Animals.pdf
Service and Emotional Support Animals under the Fair
Housing Act and the Americans with Disabilities Act

Read the information carefully and get more information.
A service dog can go just about anyplace open to the public. (I have used a service dog for several years, and still do.)  On one SD forum there is sometimes discussion re emotional support animals and how they differ from Service Dogs (SDs).

One resource might be your local DIRECT CENTER FOR INDEPENDENT LIVING. I don't know if they have info re Emotional Support Animals (ESAs)

And, if you have questions re SDs, you can call the ADA hotline-they have an 800 number.

Do be aware that a big problem facing legitimate SD users is the growing number of people who are NOT qualified to have them, claiming their FIFI is a service dog. Those qualifications are clearly spelled out in the Americans with Disabilities Act. 
I imagine there is a similar problem with people who legitimately need/use an ESA.

This can be a tough problem, both for landlords and for tenants.
I do not undeerstand what this means: "You can still put limits on the animal"

Except that ONE place even a SD cannot go is into the swimming pool. He can lay at water's edge, but NOT be in the water. That may change if the owner is drowning and needs help, so be careful there, too.

Kevin Yeats · Answer

Ofgift,

I was making a distinction between a "service animal" and an "emotional support animal."

Your friend illustrates my point.  It certainly is understandable that a person may need one or two service animals in order to live independently.

I'd love to witness the hearing where someone tries to claim that he/she needs two service animals PLUS 4 cats and assorted other animals ... especially if those other animals required cages (birds and hamsters in the same abode as a single cat let alone multiple cats).  I think that person would have a hard time making a case that he/she needed all of them for "emotional support."

If such a person where my tenant, I would have animal experts testify to the space requirements and exercise requirements of large breed dogs (5 lbs of dog = 1 mile of exercise per day)

Kevin Yeats · Answer

Steve

I agree on service animals.  Labs make great service animals and generally over 50 pounds.

These are "comfort" animals or "emotional support" animal.  I assume that means that the animal does not have to open doors etc.  The 25 lbs weight limit still gives plenty of choice for breed.  25 lbs would also include any domestic cat (except those strange giant cats - pictures floating around on emails ... if it is even real and not photohopped).

Brad Dornish's reply indeed is complete (but long and full of legalese).

Steve Babiak · Answer

Kevin,

I don't think you can place the weight limits on this.  Or breed limits either.  I recall that there was a TV show where service animals were being trained by convicts in prison, and most of the dogs were larger breeds (think Labrador Retriever).

And these should be called "service animals", not pets.  I suggest reading the link I provided earlier; it is from an attorney who is litigating a number of these cases, and his suggested advice is worth paying attention to.

Kevin Yeats · Answer

Interesting.

I wonder where the limits are.  The article noted dogs and cats (undertandably) but even a monkey and a kangaroo (absurd and potentially dangerous to the tenant and neighbors and the landlord and workers).

I wonder how the courts would view a "subclause" to the No Pets clause in a standard lease that addresses this.  That subclause would state "Should tenent receive a doctor's orders for a emotional comfort pet/companion, tenant agrees that said companion animal shall be either a domestic dog or domestic cat neither be in excess of 25 lbs at the time of acquisition nor grow to be in excess of 25 lbs during its lifetime and the tenancy of the tenant."

This would provide a clear understanding that a tenant cannot establish a "zoo" on the property.

Steve Babiak · Answer

Here is Brad's reply:

http://dornish.net/service-animals-for-tenants-with-disabilities

When your tenant gets a pet in your pet-free rental unit

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