Permitting emotional service animals in a no-pet building

I have a no-pet policy in my building. A tenant told me that she wants to keep a dog that had belonged to her mother, who recently died. She said the dog was an “emotional service” dog that was helping her deal with the recent death and that she should be allowed to keep it. She has a note from her therapist saying as much, but this dog has no particular “emotional service” training. Do I have to allow it?

Fair housing laws allow disabled persons to keep an “emotional service” animal, even in a no-pet building. The law requires that the landlord provide “reasonable accommodations” for disabled persons in order to use and enjoy their home; this includes allowing a service animal. Service animals are not “pets,” but are considered to be assistive aids for the person, similar to a wheelchair or hearing aid. However, the tenant must qualify as “disabled” to keep an emotional service animal. As we already know from this term’s application to extended notice periods and increased relocation payments in Ellis Act evictions, the definition of “disabled” is very broad and often abused.

The tenant’s claimed psychological disorder or condition must “substantially limit one or more major life activities” (such as caring for herself, learning, etc.). Also, there must be a nexus between keeping the animal and the easing of her symptoms. Finally, the tenant must provide the landlord with a letter from her therapist/physician verifying that the tenant has a disability and verifying the nexus between the animal and the easing of her symptoms. Neither the tenant, nor the therapist/physician are required to disclose the details of the tenant’s disability.

It is important to note that the tenant is not required to provide you with proof of the animal’s training or certification (Green v. Housing Authority of Clackamass County). Because no federal service training and no service trainer certification exists, there is no amount or type of training required for service animals, nor is there a required amount or type of service the animal must provide.

If the tenant meets the above requirements, unless it is proven that the animal would cause an undue burden on the landlord, a service animal must be allowed. In reviewing the applicable law, it appears as though you should allow the animal. However, to protect the enforceability of your no-pet policy, you should send a letter to all tenants reiterating the policy and stating that this exception was only made because of medical necessity. Be warned, though, that this may backfire by giving other tenants the idea of qualifying for a service animal as well. Please contact an attorney who specializes in the above issues before taking any action.

By Sally Morin and Tina J. Collins of Millar & Associates (415)981-8100.