Service Animals: Be Careful So You Don’t Get Bitten

May 1, 2019

- By Kenneth A. Krems, ESQ.

You are showing an apartment to a prospective tenant who informs you that she has an emotional support animal, a large golden retriever. You know that the building doesn’t allow pets. What should you do? Over the last 10 years or so, there have been many more requests from applicants and existing residents for emotional support or companion animals, in addition to requests for service animals. These are primarily dogs or cats, but can also be other animals such as birds, monkeys, iguanas or even miniature horses.

A request for an emotional support or service animal in a no-pet building, or for an overweight or prohibited breed in a pet-friendly building triggers fair housing issues. Both Massachusetts and Federal law make it unlawful for a landlord to refuse to make a reasonable accommodation in rules, policies, practices, or services when the accommodation is necessary to afford a disabled person an equal opportunity to use and enjoy the apartment. Waiving a no-pet policy, or allowing an overweight animal or a prohibited breed, are examples of reasonable accommodations.

A request for a reasonable accommodation must be considered on a case-by-case basis, and you may need to engage in an interactive process with the applicant or resident. If the disability or the connection between the disability and the need for the animal is not obvious, you should have the applicant fill out a reasonable accommodation form and obtain documentation from the applicant’s physician or other professional. If the physician indicates that there is a disability and the animal is necessary for the applicant’s well-being, you generally have to allow the animal.

However, the law does provide that a request for a reasonable accommodation, which results in an undue hardship to the landlord or which constitutes a direct threat to others, need not be granted. If an animal threatens other residents or animals, or barks incessantly, you may be able to inform the resident that he must remove the animal but can replace it with another one, which presumably will be better behaved. Similarly, the animal must have all required vaccinations and licenses, and the resident must take proper care of the animal and clean up after it.

Open Houses:

Another situation that you may encounter relates to open houses, where someone comes to the door with an animal and wants to bring the animal with them as they tour the house. Do you have to allow them in with the animal?

There aren’t any guidelines dealing specifically with open houses, nor are there court cases on the subject, but if the animal is a service or emotional support animal, the answer probably is yes. If the purpose of having the animal is not readily apparent, you can ask if the animal is required because of a disability. If the answer is “yes, it is”, you should let the individual and the animal into the house. Assuming that you get the names and addresses of everyone who tours the house, you should also make sure that you get the name and address of this individual.

If the individual does not have control of the animal or if it is noisy or disruptive, it has to leave the house. If it does any damage to the house, the owner of the animal should be responsible for paying for the damage.

Dealing with emotional support animals or service animals, whether in the context of renting or managing apartments or conducting open houses, can be complicated. It is important for you to know the rules and follow them carefully, so you don’t make a serious mistake.

Kenneth A. Krems, Esq, is a partner in the Boston law firm of Shaevel, Krems, O’Connor & Jackowitz LLP, where he focuses on residential and commercial real estate management and other real estate issues.