Landlords can exclude pets from their rental properties, but not service or emotional support animals. Knowing the difference can keep you out of court.
On the surface, the terms of the Fair Housing Act seem straightforward. The Act prohibits discrimination related to the sale, rental or financing of residential properties based on race, color, religion, sex, national origin, familial status, or handicap. Yet in the 55 years since its passage in 1968, violations of the Fair Housing Act continue to occur. Despite widespread educational efforts from NAR, state and local associations, and state law requirements, some real estate licensees are not familiar enough with Fair Housing laws.
Under certain circumstances, landlords who don’t allow animals in rental properties are violating the Fair Housing Act. Avoiding liability comes down to understanding the difference between a pet and an emotional support animal (ESA). In Minnesota, this is a growing area of concern. A source of confusion is the fact that landlords are legally entitled to prohibit residents from having pets live at their rental properties. Many property-management companies clearly state this policy in their marketing materials and rental contracts. Yet according to the Fair Housing Act, not all animals are defined alike, and in certain cases landlords must make exceptions.
Consider the case of Sylvie the cat.
For Yusbith Ibarra, the word “pet” cannot adequately describe Sylvie. Since beginning treatment for a major depressive disorder in 2017, Ibarra struggled with a host of issues, from disturbed sleep patterns to difficulty with social interactions. Over time, her symptoms worsened, and she was hospitalized in November 2019. When Ibarra was released in December, she embraced a form of therapy widely endorsed by mental health professionals. She adopted a cat.
From a psychological and legal perspective, her new companion was designated an ESA. Although not considered service animals (see below: What’s the Difference Between a Pet and Service or Support Animal?) the Fair Housing Act protects the right of people with a handicap (as defined under 42 U.S.C §3602(h)) to keep ESAs, even when landlords do not allow pets.
Sylvie was making a difference in Ibarra’s life. Since bringing the cat home to her Minneapolis apartment, she found some relief from the nightmares that rocked her sleep and had an easier time getting out of bed in the morning. Generally, Sylvie’s steadfast affection and support made hard days more bearable. So, in 2021 when Ibarra and her husband James Clark started looking for a new apartment closer to Ibarra’s job, there was no doubt Sylvie would come along with them.
In mid-June, the couple found the perfect spot at Larpenteur Estates in St. Paul. The spacious apartment had many amenities, pleasant community green spaces, and lots of parking. Best of all, it was closer to work and would ease Ibarra’s stressful commute. But during an email exchange with Jennifer Costello, the property manager, Ibarra encountered a major obstacle. Larpenteur Estates was “an animal-free/pet-free community.” Costello apologized and said they could not accommodate Ibarra’s ESA.
Puzzled by this response, Ibarra persisted, stating in an email to Costello that she had “never heard of an apartment not allowing an ESA.” When Costello didn’t respond to that or several follow-up emails, Ibarra reached out to Mark Frisch, vice president of Major Management, the company managing Larpenteur Estates. When she didn’t hear back from him, she went forward with the application process, dropping off paperwork and checks at Larpenteur’s leasing office. The next day, Ibarra returned to Larpenteur and spoke with Costello, who told her the application was “on hold” due to Ibarra’s “special circumstances.”
Feeling stonewalled, Ibarra made numerous attempts to talk with Frisch. When he finally called her on June 25, Frisch told her that animals weren’t allowed at Larpenteur because its tenants do not want to live around them. He added that while they would make an exception for a service animal, Ibarra’s cat was clearly not in the category. That’s why it would be best, he concluded, if she found somewhere else to live.
After this conversation, Ibarra decided not to pursue the Larpenteur apartment, but filed a complaint with the U.S. Department of Housing and Urban Development (HUD). After an investigation, HUD ruled in April 2022 that Ibarra and her husband “suffered actual damages, including, but not limited to, emotional distress, inconvenience, frustration, and loss of housing opportunity.” Frisch and Costello were charged with discrimination under the Fair Housing Act. In May, the Secretary of HUD authorized action through the Attorney General to pursue a civil action against them.
- In a consent decree resulting from a settlement in August, the defendants agreed to:
- Not discriminate in the sale or rental, or otherwise make unavailable or deny a dwelling to a buyer or renter because of disability;
- Not discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling because of disability;
- Make reasonable accommodations for people with disabilities, including implementing a policy allowing assistance animals at Larpenteur Estates;
- Not make, print or publish any notice, statement or advertisement that indicates any preference, limitation or discrimination based on the protected classes;
Additionally, the defendants agreed to:
- Adopt an Assistance Animal Reasonable Accommodation Policy and a Nondiscrimination Policy and send written notice to every resident of the new policies;
- Place posters in specified locations that all dwellings are available for rent on a nondiscriminatory basis;
- Provide employees with copies of the Nondiscrimination Policy and attend a training program that educates them on the Fair Housing Act, and its provisions on disability discrimination;
- Abide by certain reporting and recordkeeping requirements.
Frisch and Costello were also required to pay Ibarra and her husband almost $13,000 in damages.
What’s the Difference Between a Pet and a Service or Support Animal?
Service Animals
A service animal is any dog trained to do work or perform specific tasks for someone with a disability. Typical tasks they perform include:
- Pulling a wheelchair
- Retrieving dropped items
- Alerting a person to a sound
- Reminding a person to take medication
- Pressing an elevator button
- Detecting seizures
- Keeping a person calm during a panic attack
Emotional Support Animals
Although they can be used as part of a medical or psychological treatment plan, emotional support animals are not considered service animals under the Americans with Disabilities Act. Typically, they provide companionship and support for people being treated for:
- Depression
- Anxiety
- Phobias
Learn more by visiting the Service and Emotional Support Animals page on the Minnesota Department of Human Rights website.
Landlord Rights with Service and Support Animals
The Fair Housing Act requires landlords to make reasonable accommodations for tenants with physical or mental disabilities. This includes allowing service or support animals in their dwellings. However, landlords retain the right to vet a tenant’s claims and impose certain restrictions:
Require tenant to prove need for the animal
If you have a no-pets policy on your property, you can ask the tenant to provide a letter from a licensed healthcare professional that explains the need for a service or support animal.
Prohibit animals that pose risk, burden, or danger
Even if a tenant could prove the need for an emotional support tiger, the risks of keeping a wild animal in an apartment outweigh any benefit to the owner. However, such restrictions should not be imposed on dog breeds which are sometimes perceived to be dangerous, such as pit bulls, mastiffs, dalmatians, German shepherds, Doberman pinschers, and others. According to the Centers for Disease Control (CDC), there is no reliable data linking these breeds with a higher rate of bites and fatal dog attacks than other dogs. For more on this topic, see “Has Fair Housing Gone to the Dogs?” in the March/April 2022 edition of The Minnesota Realtor®.
Evict animals that are badly behaved
Animals that growl, lunge, bite, claw or scratch other residents of the apartment complex may pose a danger that could be grounds for eviction. Similarly, animals that bark excessively, damage property, or cause other disturbances can be removed from the property.