thomas's-leaf-monkey_0337One common bit of conventional wisdom under the FHA is that apartments and other housing providers cannot require a pet deposit for an assistance animal or service animal. This is certainly the position of HUD and the DOJ. (See, HUD memo dated April 25, 2013 and see The position is based on the notion that because a disabled person is required to have a service animal it is discriminatory to require anything of such a person that would not be required of a person without a disability who had no pet. See Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., 2011 WL 2945824 (D. Idaho 2011). The question of whether it indeed violates the FHA to require what would be more rationally called an “animal damage deposit” is really more nuanced than this.

As a first step, there in an inherent inconsistency in the positions taken by HUD and the DOJ concerning damage caused by service or assistance animals. HUD acknowledges that an apartment owner can charge an animal owner for damage caused by the animal if it requires reimbursement for damage cased by other tenants. If the argument against an animal damage deposit is that disabled persons cannot use or enjoy the premises without an animal surely it can argued that the inevitable damage is also a consequence of their disability. After all, non-disabled tenants are never charged for animal damage because, of course, they don’t have animals if there is a no pets policy. A refundable animal damage deposit is only an advance against later damage, and if the landlord can charge for actual damage there is no reason not to charge a refundable deposit.

The FHA should allow this because it is elementary that a reasonable since a reasonable accommodation cannot impose an undue financial burden on the landlord. Giebler v. M&B Associates, 343 F.3d 1143 (9th Cir. 2003). Landlords require damage and rent deposits for all tenants based on the reality that renters move out and leave damage behind, and that it is difficult or impossible to recover the cost of that damage after the fact. If an animal is likely to cause additional damage then the landlord will suffer an undue financial burden if it cannot require a deposit. The widespread imposition of pet deposits in apartments that allow pets demonstrates that animals do cause additional damage. After all, no landlord would make his apartments less competitive by imposing an unnecessary charge on tenants.

In addition, the FHA’s non-discrimination provisions include “assistance animals” that provides “emotional support” to “alleviate” symptoms of a disability. No special training is required. The ADA definition of service animal is not so loose, providing that a service dog is “individually trained to do work or perform tasks for people with disabilities.” In most cases the special training for service animals includes behavioral training that makes them unlikely to be destructive in any circumstance. There is no assurance that an assistance animal will have such training, and so it may be rational for a landlord to require that assistance animal owners pay a damage deposit. This was discussed in Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.North Dakota 2011), a case that concluded fact findings were required to determine whether it was reasonable to require a damage deposit. In Smith v Powdrill, 2013 WL 5786586 (C.D. Cal. 2013) the court went further, acknowledging that while a “no pets” policy could not be enforced, a reasonable accommodation might include requiring a damage deposit not required of tenants who had no animals.

Finally, there may be a real question as to whether a modest animal damage deposit actually has the effect of denying a disabled tenant access to housing. In the Intermountain Fair Housing case the animal deposit was fairly steep at almost $1000. It isn’t hard to imagine cases in which, based on the rent for the apartment and ordinary deposit a modest additional pet deposit would not be a problem for tenants wealthy enough to rent a unit in the first place. A rational deposit requirement that imposes no real burden on the tenant would certainly seem to be possible as part of a reasonable accommodation.

In the end, the key to the question of animal damage deposits boils down to whether the facts justify such a deposit as part of a reasonable accommodation. “The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir.1997). Unlike service dogs that accompany their owners for a short time in a retail store or restaurant, assistance animals are likely to spend most of any day in the apartment, making the chance of destructive behavior greater. In addition, because there is no limit on the kind of assistance animal there are also more possibilities for destructive behavior. A monkey, for example, can reach and damage things no dog could reach. By trying to create a single broad rule for a wide variety of disabilities and types of animals HUD and the DOJ have ignored their own repeated warning that determinations concerning reasonable accommodations must be based on the specific circumstances rather than sweeping generalizations. This imposes a burden on landlords, who themselves cannot rely on a “one size fits all” policy, but also means there is a sound argument to be made that a reasonable accommodation may include an animal damage deposit.