service animals of a tenant's guest

[Mike R.]

Still trying to understand what we have to do to accommodate a service animal, but long story short, we have a tenant  (the only person listed on the lease) that we have noticed the smell of dog and cat when our lease specifically forbids animals.  when asked about the smell of animals, we were told that the significant other (not listed on the lease) has a service dog.  we explained  that pets are not allowed and that they are responsible for their guests to which she responded that we have to make accommodations for that dog.  

so a few questions:

1) we don't believe we have to make accommodations for a supposed service dog a non-tenant.  are we correct?

2) the damage to the unit (i.e. the smell) is from the carpet which was relatively new when the tenant moved in and did not have an oder.  we believe we can deduct the cost of new carpet from the security deposit because it isn't normal wear and tear because the lease prohibits animals.  are we correct?

3) we actually know someone who wanted to bring their dog shopping and to restaurants, so they asked their Dr. to write a letter saying the "needed" the dog (i.e. it was a service animal) so i doubt this is really a service animal, but can we ask for proof that the dog is in fact a service animal?

[Marcia Maynard]

A few of my thoughts from my years of experience as a landlord and from my former work as the Accessibility Services Manager at a large medical center and advisory board member of an agency serving people with disabilities. Not legal advice.

1. It is good practice to establish a pet policy and procedure and a service animal policy and procedure prior to encountering the need.

See: http://www.mvfairhousing.com/ServiceAnimalPolicy.P...

An example from our rental agreement of a clause that has proven useful:

"PETS AND ANIMALS.This agreement specifically prohibits keeping pets/animals, or allowing the pets/animals of others on the premises, even temporarily, without the prior written consent of Landlord.“Pets/animals” include, but is not limited to, both warm- and cold-blooded animals, such as dogs, cats, fish, rabbits, hamsters, rats, birds, snakes, lizards, and insects.Tenant agrees to pay immediately for any damage, loss, or expense caused by such pets/animals. If Landlord grants permission for keeping a pet, Tenant must sign a Pet Agreement addendum for each pet, which may require additional monthly rent and/or additional security deposits. Service animals are allowed for people with qualified disabilities upon request and completion of a Service Animal Agreement addendum. If Tenant allows a pet/animal in the residence, even temporarily, without Landlord’s consent, Tenant agrees to pay a penalty fee of fifty dollars ($50) per violation, per pet/animal."

2. Regardless if damage is done by a pet or a service animal, you can charge for the damages. It is good practice to charge for damages as they occur or as you discover them. Security deposit funds are for use at end of tenancy after the tenant has moved out. If you wait until the end of tenancy to charge for damages, the security deposit will rarely be enough.

3. You can ban pets or even charge a pet fee, pet deposit and/or pet rent for pets, but you can not do so for service animals. Many tenants realize by classifying their pet/animal as a service animal they can skirt around no-pet policies and policies that require a pet fee/pet deposit/pet rent. There are numerous resources on-line to help people get so-called certification of their animal as a service animal, whether or not the animal is legitimately so and whether or not the person has a qualified disability. We encounter more people faking it than we encounter those who are legitimate. That said, it is important to be respectful and follow the same procedure with everyone who requests an accommodation. We openly state that we welcome qualified service animals for people who have qualified disabilities. We will provide reasonable accommodation as necessary. 

We can and do require the person to put their request in writing and to provide appropriate documentation. Unfortunately, the type of documentation you can require the person to produce is minimal. You can not ask the person specifics about their disability and they do not need to share that with you. However, you can ask for documentation from a qualified professional that attests to the fact that the tenant/guest has a qualified disability and that this particular animal provides a necessary service specific to this person's disability.

4. Requirements for places of public accommodation (stores, restaurants, hospitals, etc) is not the same as requirements for housing. The home of an individual is not a place of public accommodation, but it's occupants are protected under Fair Housing laws. A tenant and/or their guest need to be accommodated upon request if they have a qualified disability. Be sure to consult with experts on federal and local fair housing laws for your jurisdiction. Some states, counties, and municipalities have established additional laws to protect people with disabilities from discrimination in housing. Check out the HUD documents in their portal. There are some differences between public housing and private housing. There are different laws that apply depending on the type of business entity and type of housing.

5. From what the OP shared, it sounds as though the individual in need of accommodation may be a tenant, not a guest. Whether or not the person is named in the rental agreement, if they have established residency, they become a tenant by default. If this is the case, it is best to amend the rental agreement to include the name the new occupant. If they do not live there, have not established residency and are indeed a guest, the OP may still require them to provide documentation to support their request for an accommodation. In either case, the OP will need to become familiar with Fair Housing law and other laws protecting the rights of people with disabilities and accommodate as necessary.