Colorado, like all other states, must comply with federal regulations regarding support animals. This article answers some of the most commonly asked questions about the rights and obligations of both landlords and tenants when it comes to support animals.
What is the Difference Between an emotional support animal and a service animal?
There are two types of assistance animals: (1) specially trained service dogs (under the ADA, service animals must be dogs), and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide emotional support for individuals with disabilities. It is important to note that when it comes to housing (unlike airlines, for example), federal housing laws do not distinguish between the two. For the purpose of this article, both types of animals are referred to as “support animals”.
Can a landlord deny a tenant’s request to keep a support animal on the property?
Federal law makes it unlawful for a housing provider to refuse to make reasonable accommodations for a tenant with a disability. According to the U.S. Department of Housing and Urban Development (HUD), a support animal is not considered a “pet,” so even if you have a no-pet policy in the lease, a tenant with a disability may request reasonable accommodation to allow their support animal on the property, including in public and common use areas. In addition, because a support animal is not considered a pet, a landlord may not charge a pet fee or deposit for such animals. Except under very specific circumstances, a landlord’s refusal to provide such reasonable accommodation could be considered a violation of the Fair Housing Act (FHA).
Can a landlord ask the tenant to prove the existence of a disability?
If the support animal in question is a dog, and it is readily apparent that the dog is trained to do work or perform tasks for the tenant, further inquiry is not necessary as the dog would be considered a service animal. It is “readily apparent” if, for example, the dog is guiding an individual who is blind or otherwise visually disabled, is pulling a wheelchair, or is visibly providing assistance with stability or balance. If the dog’s task is not readily apparent, landlords should limit their inquiry to questions such as:
- Is the animal required because of a disability?
- What work/task has the dog been trained to perform?
If no specific task is identified, the animal may still be considered a support animal. In this instance, the tenant must submit a written or oral request for reasonable accommodation for their disability. Remember that not all disabilities are obvious. A landlord may request reliable documentation if the disability is not readily apparent or otherwise known.
How can a disabled tenant avoid disputes with their landlord over the support animal?
Although not necessary, it is advisable for a tenant with a disability that is not readily apparent to submit a written request for “reasonable accommodation” for an “assistance animal.” This clear language will help avoid any miscommunications. Such request can be made at any time—either before or after the animal has been acquired. In order to avoid disputes, it is sensible to make the request as early as possible.
It is not a requirement for a tenant with a disability to present evidence of the disability. However, it may help to prevent a dispute if the tenant provides information that reasonably supports the existence of a disability. A landlord may not deny the accommodation on the grounds that the tenant did not provide such information. However, if a landlord requests such information and, after a reasonable opportunity to do so, the tenant fails or refuses to provide it, the landlord is not obliged to grant the request for accommodation.
What type of information or documentation can assist a landlord in assessing whether to grant accommodation?
A tenant with a disability that is not readily apparent may provide the landlord with documentation from a licensed healthcare professional, such as a psychiatrist, physician, physician’s assistant, optometrist, or nurse practitioner. The documentation should state the patient’s name, whether the patient has a physical or mental impairment, the date of the last consultation with the patient, and should specifically address the connection between the disability and the need for the assistance animal.
Even if the tenant has a disability and has provided support for their request, can a landlord deny the support animal?
Under specific circumstances, a landlord may still deny a request for a support animal if the situation would constitute a direct threat to the health or safety of other individuals or if accommodating the support animal would result in substantial physical damage to the property of others. If such threats cannot be eliminated or reduced to an acceptable level, accommodation of the support animal can be denied.
For questions about leases and support animals, contact:
Leah Gallant, lgallant@garfieldhecht.com
Macklin Henderson, mhenderson@garfieldhecht.com
