Jack Russell Terrier SnarlingSupport animals for individuals with mental health disabilities present special problems for the owners and managers of residential properties. A complaint filed on New Year’s Eve, Intermountain Fair Housing Council, Inc. v. Michael’s Manor, LLC, illustrates some of those problems and shows why requests for an accomodation to allow a support animal must be handled with care.

The first issue faced by owners and managers is whether an untrained support animal has to be allowed at all. In Michael’s Manor the plaintiff alleges that the leasing agent flatly refused to permit a support animal for the treatment of a mental disability A decade ago that refusal might have worked, for a number of courts held that an apartment or condominium complex was only required to permit trained service animals based on the ADA definition of “service animal.” The FHA does not mention service or support animals in its provisions concerning reasonable accommodations and most recent decisions agree that refusal to allow a mental health support animal can constitute illegal discrimination. Requiring proof that the tenant’s animal qualifies as a “service animal” for a physical disability almost certainly violates the FHA.

A second common problem is confusion about pet deposits and discrimination. Apartments and condominiums that require pet deposits for ordinary tenants cannot require deposits from disabled tenants who need a support animal. This is because the courts agree that the animal is not a pet, but a necessary adjunct to the tenant’s ability to use and enjoy the premises. The rule is easy to state, but the distinction is one that many property managers won’t appreciate without training.

Even when a landlord recognizes the need to accommodate disabilities that can be treated with a support animal there is a delicate balance between asking for enough information to know the request is legitimate and asking for so much that the law is violated. Most courts allow the property owner or manager to ask for information that is: (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. When the tenant provides a letter or note from a doctor it is generally permissible to ask for information about the doctor’s credentials with respect to the disability. That, however, is generally all that can be asked for. Requests for underlying medical records or detailed information about the disability are not allowed.

This seems clear enough, but of course mental disabilities are difficult or impossible for a lay person to recognize, and it may be tempting to ask for more information in order to confirm the disability and the need for a support animal. That is what happened in Bhogaita v. Altamonte Heights Condominium Ass’n, a case decided just a few weeks ago in Florida. After receiving three letters from the plaintiff’s physician confirming his disability and need for a support animal the Association demanded to know why the animal had to weigh more than 25 pounds, which was the Association’s pet size limit. That and a follow up letter demanding details about the plaintiff’s treatment were too much, and the district court granted summary judgment for the plaintiff on his discrimination claim. Knowing in advance when a court will decide the landlord has enough information may not be easy, so managers must be careful in what they ask for.

A related problem concerns the lack of any real definition of a support animal or of the kinds of mental disabilities that might require one. Most support animal cases recognize that the inquiry concerning this kind of accommodation is fact intensive. “Fact intensive” means, in practical terms, expensive to litigate. When the court must inquire about the facts summary judgment or dismissal are very unlikely. A manager that wants to push back on what may look like an unreasonable claim is taking a risk that the legal fees will be considerable even if there is a victory in the end.

There is one clear message from all the cases. Those involved in the management of residential properties covered by the Fair Housing Act should be prepared in advance to ask the right questions about requests for accommodation, and to provide the accommodation when it is justified. Otherwise Fido’s bite may be worse than his bark.