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Assistance Animals in Rental Housing

Last Updated On: 2/2/2018 6:48:15 PM

For People With Disabilities, What Are The Rules About “Assistance Animals” In Rental Housing?

Here’s the short version: Under the Fair Housing Act, “Assistance Animals” and “Pets” are two different things.

“Assistance Animals” may be exempt from ordinary rules about “Pets.”

But there are special rules about qualifying as an “Assistance Animal.”

What’s The Difference Between Rules About Pets and Rules About “Assistance Animals”? 

Pets. The law doesn’t say anything about Pets in rental housing. Landlords can put any Pet rule or requirement they want in the lease. If you sign the lease, you accept the Pet rules.  For example, landlords can put language in the rental agreement:

  • Prohibiting pets
  • Saying ‘no inside pets’
  • Saying ‘no outside pets.’
  • Requiring a refundable “pet deposit”
  • Requiring a non-refundable “pet fee”
  • Allowing no more than one pet
  • Charging higher rent to tenants with pets.

For more information read our article on Pets in Rental Housing.

Assistance Animals. The law has a lot to say about “Assistance Animals” in rental housing. The federal Fair Housing Act protects people with disabilities who need Assistance Animals to “use and enjoy a dwelling.” Ordinary pet rules may not apply to “Assistance Animals.”

Here are some examples of Assistance Animals:

  • A Guide Dog for a person with blindness.
  • A cat who can detect when a person with a seizure disorder is about to have a seizure and alerts the person so that he has time to prepare.
  • A bird who alerts a person with hearing issues when someone has come to the door.

What Are The Requirements To Be An Assistance Animal?

  • The tenant must have a disability; AND
  • The tenant must have a “disability-related need” for an assistance animal; AND
  • The animal must do one of the following:
    • a. Either -- work, perform assistance, or perform tasks or services for the benefit of a person with a disability;
    • b. Or -- provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.

If all these conditions are met, you can ask for a “reasonable” accommodation to have the Assistance Animal. But the Fair Housing Act does not require the landlord to accept “unreasonable” accommodations.

Who Is A “Disabled Individual” Who May Need An Assistance Animal? 

A disability is defined under the federal Fair Housing Act as “a physical or mental impairment that substantially limits one or more major life activities such as the ability to work, walk, talk, see or hear.” 

This can include physical limitations such as blindness, hearing problems, or the need to use a wheelchair.

This can also include mental or emotional limitations such as the inability to be around crowds.

Some disabilities are obvious, such as blindness or the need for a wheelchair. Some disabilities are not obvious, such as mental or emotional impairments. People with either type of disability may need an Assistance Animal.

The federal Fair Housing Act protects people with disabilities who need Assistance Animals to “use and enjoy a dwelling.” Under the WV Human Rights Act the test is the same: whether the animal is “necessary to afford the person equal opportunity to use and enjoy a dwelling.” WV Code, Section 5-11A-5(f)(3)(B).

The bottom line is this. The landlord’s pet rules may not apply if (1) you are a person with a disability, and (2) your animal is needed so that you can “use and enjoy a dwelling.”

Does An Animal Have To Be Specially Trained In Order To Qualify As An “Assistance Animal” under the Fair Housing Act?

No. The Fair Housing Act does not require an assistance animal to be individually trained or certified.

Does It Matter What Breed, Size or Weight My Assistance Animal May Be?

No. A landlord cannot impose general restrictions such as Breed, or Size/Weight.

On the other hand, your Assistance Animal cannot be a “direct threat” to the health or safety of others. That would be unreasonable.

See the question below about how to decide if an animal is a “direct threat.”

What Does “Reasonable Accommodation” Mean?

Suppose your landlord has a No Pets rule, or prohibits the kind of Animal you have. You meet the basic conditions we’ve discussed:

(1) You have a disability;

(2) You have a ‘disability-related need’ for an Assistance Animal; and

(3) Your Assistance Animal either works or performs tasks for you, or provides emotional support to help you manage the symptoms of your disability.

You are entitled to ask the landlord to make a “reasonable accommodation” of your needs, by not enforcing the normal pet rule.

But not all requests are reasonable. There are two major limitations on the accommodation you can request:

Your request cannot impose an “undue financial and administrative burden” on the landlord.

Your request cannot “fundamentally alter the nature” of the landlord’s services.

For example, suppose you ask the landlord to build a 30-dog kennel behind the apartment building. That would not be reasonable, it would be an undue burden.

Suppose you ask the landlord to empty out all other apartments in the building because the sounds would disturb your Assistance Animals. That would not be reasonable. That would fundamentally alter the nature of the landlord’s services.

Suppose your Assistance Animal would be a “direct threat to the health and safety of others.” That would not be reasonable.

How Can A Landlord Assess When An Animal Is A “Direct Threat”?

The landlord cannot just use general restrictions like Breed, Size or Weight.

For example, the landlord cannot prohibit your Assistance Animal because it is a “pit bull.” True, many put bulls are dangerous. But many pit bulls are not dangerous.

Instead, the landlord has to use specific information about your particular animal.

If your pit bull DOES have a history of being dangerous to others, the landlord can use that specific information.

In general, the landlord should examine this particular animal. What is the history of this animal? Has this animal been harmful or dangerous to others? What training has been given to assure this animal would not be a danger to others? These are reasonable questions. The landlord can require you to provide this information. If the information shows your animal is a “direct threat” to others, then the landlord does not have to accept your Assistance Animal.

Can My Pet Also Be My “Assistance Animal”?

Usually, No. “Ordinary comfort and companionship” from a pet is NOT enough. This is true no matter how important your pet is to you. Your “pet” is not an “Assistance animal” unless you have a disability, and the animal helps you meet needs related to your disability.

First of all, recognize that this law applies only to people with disabilities. If you do not have a disability, then your pet cannot be an Assistance Animal. You will have to abide by the landlord’s pet rules.

Second, recognize that this law protects only animals who help with your specific disability. Your pet may have nothing to do with your disability.

For example, a person who uses a wheelchair may have a parakeet as a pet. The parakeet provides no assistance in dealing with the mobility impairment. The parakeet will not be considered an Assistance Animal.

But the person using a wheelchair may ALSO have a non-obvious mental health disability. The parakeet MIGHT be an aid to the person in managing her behavioral health condition. If you verify that you have a behavioral health impairment, and that the bird assists you in managing the effects of the condition, then the bird may qualify as a protected Assistance Animal.

Can the Landlord Require Me To Present Proof of My Disability?

In some situations, Yes.

Suppose your disability is obvious. The answer is No. The landlord CANNOT demand further verification. For example, a person who is blind cannot be asked to provide additional documentation of their blindness or their need for a guide dog.

But suppose your disability is not readily apparent. For example, a behavioral health condition like Anxiety or Depression often is not apparent to others. When the disability is not readily apparent, then the landlord CAN require you to verify the disability, or to verify how the animal assists you in managing your disability.

Do I Have the Right To Take My Assistance Animal To A Restaurant or Movie Theater?

Probably not.

You can take your Assistance Animal into a restaurant to theater ONLY if (1) it is a dog; and (2) the dog has been specially trained to perform work or tasks for you; and (3) the dog is not an “emotional support animal.”

Why Are Restaurants and Theaters So Different?

This article discusses the Fair Housing Act. This law protects your rights to use and enjoy “housing.” It applies ONLY to Housing. The Fair Housing Act does not apply to other situations.

Movie theaters, restaurants, and other public places are not Housing. They are covered by the Americans with Disabilities Act (ADA). The ADA covers any more situations, but it has much more limited protection.

What Are The Requirements Under The ADA For Restaurants or Theaters?

The Fair Housing Act uses the special term “Assistance Animal.” This article explains what that term means, under the Fair Housing Act.

The ADA uses a different term: “service animals.” The two terms may sound like they mean the same thing. But they are NOT the same.

The ADA definition of “Service Animal” is much more limited than the term “Assistance Animal.”

First, only a dog may be an ADA “Service Animal.” Cats and birds and lizards and other animals cannot be ADA “Service Animals.” No matter what training they’ve had, or what tasks they perform.

Second, the dog must be “individually trained” to do work or perform tasks for an individual with a disability. If the dog has not had specific individual training to perform the disability-related tasks, it is not an ADA “Service Animal.”

Third, “provision of emotional support, well-being, comfort, or companionship” does not qualify to be an ADA Service Animal. Specific work or tasks (like a Guide Dog) qualifies. Emotional support or companionship does not qualify.

Your “Assistance Animal” under the Fair Housing Act may meet all three requirements. You may have a dog, that is specially trained, that performs work or tasks for you. Then your Fair Housing Act “Assistance Animal” is ALSO an ADA “Service Animal.” You would have the right under the ADA to take your “Service Animal” to a restaurant or theater.

But if your Fair Housing Act “Assistance Animal” does not meet all three requirements, it is not an ADA “Service Animal.” Your right to take the “Assistance Animal” to a restaurant or theater is not protected by the ADA.

This is general legal information. For guidance about your situation, talk to a lawyer.