MAR Online Blog

Your landlord client undoubtedly turns to you, their REALTORâ as the housing expert; while these answers are here to help guide your understanding of the interplay between fair housing, kids and pets please remember that all decision-making rests with the Landlord. Be the source of the information for your client, but refrain from the legal analysis required in making these determinations.

The landlord’s elderly tenant doesn’t want a lot of noise, can they deny applications with children?  

No.

The rental unit is very small, very old and located on a busy road, can the landlord state a preference for single occupants?  

No.

Housing providers cannot discriminate based on familial status, which includes treating potential tenants who have children worse or differently than potential tenants without children or excluding them from the application process altogether.

If a potential tenant has children, it is illegal for a real estate professional or a housing provider to discourage that tenant from looking for housing in a particular neighborhood or building or to not show or inform them about available units because they have kids. It is illegal to suggest that a unit is not “child-appropriate” by telling them there is lead paint, or the stairs are too narrow; that the unit is too small or that it is located on a busy road. It is also illegal to reject qualified applications because the building is “quiet” or has older tenants in place already.

Practice Tip: Do not request the age of the prospective tenant’s children on the application. The best practice is to have any applicant over the age of 18 to complete an application individually and then any tenant under the age of 18 to be listed by name only. Identifying the age of a child for lead law purposes is permissible as a part of the lease itself so that the landlord is put on notice of their legal obligations.

My landlord client has a no pet policy, the landlord can enforce that, right?

Not in every circumstance. When met with a request for a reasonable accommodation to the landlord’s pet policy for a prospective tenant’s service or support animal, the pet policy cannot automatically be upheld in order to deny that prospective tenant’s application.

In Whittier Terrace Associates v. Hampshire, 26 Mass. Appt. ct. 1020 (1989) a tenant that was emotionally dependent on her cat, raised reasonable accommodation as a defense to an eviction for violation of the no-pet clause of her lease. The court found a waiver of the no-pet rule to be a reasonable accommodation.

In general, it is an unlawful practice for an owner, real estate broker, managing agent or other person with ownership right or right to rent/lease, sell/negotiate, or any agent or employee of such person or any organization of unit owners in a condo to refuse to make reasonable accommodations to rules, policies and practices or discriminate or refuse to rent because a tenant or anyone associated with the tenant has requested a reasonable accommodation because of a disability.

The obligation to make reasonable accommodations exists at all stages of a tenancy: application, screening, residency, and termination.

HUD makes clear that an assistance animal is not a pet and therefore is not covered by a landlord’s pet policy. Further, an animal offering emotional support or comfort that will enable a person with a disability to live in the housing unit must be considered as a reasonable accommodation. Finally, HUD requires that any assessment of whether the proposed assistance animal would pose a direct threat to health or safety or cause property damage must be based on an individualized assessment of the animal.

Practice Tip:  If you are met with a reasonable accommodation request and your landlord client wants to deny this request, point them to private counsel. This legal analysis is outside of your role as their REALTORâ. Protect yourself and your client by knowing when to direct them to seek legal advice.

Pets can cause a lot of extra damage, can the landlord charge a pet fee?

No. Landlords in Massachusetts are limited in what fees they can collect. Landlords can only collect first and last month’s rent, security deposit and lock and key fees. Any additional fees, including pet fees are strictly prohibited. If the landlord allows for pets on the premises, they should take any perceived liability into account when setting the monthly rent.

Remember, service or support animals are not pets and any accommodation made from a no pet policy cannot come with a matching fee.

The landlord’s insurance will not cover all breeds of dogs, can the landlord deny the reasonable accommodation request on these grounds? 

No. Remember that service animals and support animals are not pets and insurance carriers are not allowed to violate the laws either. Those insurance companies must also make reasonable accommodations to their policies.

Practice Tip: Have an open conversation with your landlord client prior to listing the unit. Let them know from the beginning your role in the process and your dedication to adhering to fair housing laws and ethics.