Anyone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of impairment, or is regarded as having impairment is considered disabled and is part of a protected class under the federal Fair Housing Act. The Texas Fair Housing Act mirrors the Federal Fair Housing Act and provides for fair housing practices in the state.
The state and federal fair housing acts require housing providers to make reasonable accommodations to the rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.
When feasible, housing providers like landlords and property managers are required to provide reasonable accommodation when a tenant requests a reasonable accommodation because of his or her disability. However, there has to be a connection between the requested accommodation and the disability. Just because someone has a disability and makes a request doesn’t mean it has to be granted. Here’s what you should know to avoid problems with state and federal laws.
What is a reasonable-accommodation request?
A reasonable-accommodation request is any communication that asks that you make an exception to the rules, policies, practices, or services necessary to afford a person with a disability an equal opportunity to use and enjoy the dwelling, such as allowing an assistance animal.
- Requests can be verbal or written. Written requests do not have to be made with a certain form. Don’t require the tenant or applicant to put the request in writing.
- There are no specific words that must be included in a request. Requesters aren’t required by law to mention the federal or state acts or use the words reasonable accommodation.
- A reasonable-accommodation request can be made by the person with the disability, by a family member of that person, or someone else requesting it on a person’s behalf.
Does the Americans With Disabilities Act apply to assistance animals and property rentals?
There is a difference between the ADA and federal fair housing laws. Emotional support animals are covered under the Fair Housing Act.
While there is no such thing as an emotional support animal under the American with Disabilities Act, the ADA covers service animals (only dogs and miniature horses) in areas of public accommodation. Areas of public accommodation are considered places where business is conducted. That includes your office, a leasing office, a restaurant, a recreation facility, and so forth.
The Fair Housing Act is what applies to private property—since it covers the sale or rental of housing and accommodations—and accommodations that you make may make, such as allowing for an emotional support animal.
Is there a difference between an assistance animal, service animal, or an emotional support animal?
Assistance animal is a blanket term that covers service animals and emotional support animals. When someone requests that you allow an assistance animal under the Fair Housing Act, it can be either a service animal or an emotional support animal. Under the law, assistance animals do not have to have a certificate or specific training.
Service animals are performing a service, such as a seeing-eye dog or an animal that can detect the onset of an epileptic seizure.
Emotional support animals provide support for someone with a mental disability.
What type of animal can be an assistance animal?
Any animal can be an assistance animal. This also means breed and weight restrictions don’t apply to assistance animals, whether those restrictions come from a property owner, an HOA, or an insurance company.
Insurance companies may specify a homeowner or renter cannot have a specific breed in the property. But if a person has a disability and a disability-related need for the assistance animal, it is a violation of the Fair Housing Act for an insurance company to enforce any of those breed or size restrictions on an assistance animal. The Department of Justice handles complaints for these types of situations.
While it’s possible a landlord may be able to deny a request because of an insurance company’s policy restrictions, the landlord may want to find out whether comparable insurance is available without a restriction before denying a reasonable-accommodation request.
Provide the information from the insurance company to the requester and explain the policy. Document that you have done so and what each party said. Although you may still be named in a complaint, this action and documentation may help you and the homeowner avoid trouble and put the focus on the insurance company’s practices.
Proceed with caution when requesting proof of someone’s disability
Scenario 1: When both the disability and the disability-related need is apparent or already known, you may not ask any additional questions or request further verification of someone’s disability.
Example: Someone who is blind makes a reasonable accommodation request for his seeing-eye dog although the property has a no-dogs policy.
In this scenario, the need is apparent, so there is no reason to ask for additional information regarding why the requester would need a seeing-eye dog.
Scenario 2: When the disability is apparent but the disability-related need is not apparent or previously known, you may only ask for verification of the disability-related need, not verification of the disability.
Example: Someone who is blind makes a reasonable accommodation request for an additional parking spot.
In this scenario, the disability is apparent, but the disability-related need for the extra spot is not apparent or not previously known. You can request information from the applicant about the need for the parking space, but you cannot ask for verification of the disability.
In a real-world example of this scenario, a tenant requested a parking spot so she would have a safe area for her seeing-eye dog to relieve himself. After she provided verification of this disability-related need, the housing provider made a parking spot available.
Scenario 3: When the disability is not apparent or previously known and the need is not apparent or previously known, you may ask for verification of the disability and the disability-related need for the accommodation. This is most common with mental disabilities.
Do’s and don’ts when you receive a request for reasonable accommodation
- Do accept a verbal request.
- Don’t automatically respond with no.
- Do acknowledge the request, and let the requester know you’ll respond with an answer. You can do this by completing and providing the members-only form Response to Request for Assistance Animal (TAR 2225). Using this form is also a good way to document your actions.
- Do keep the lines of communication open and provide updates on progress.
- Do document the steps you take when asked about a reasonable accommodation.
The members-only form General Information for Landlord Regarding Assistance Animals (TAR 2226) details what landlords should know when they receive a reasonable accommodation request for an assistance animal. Both the broker and landlord can sign and date the form to indicate the landlord’s receipt.
Can a housing provider deny a reasonable-accommodation request?
Yes, if …
- The housing provider has reliable, objective evidence that a person with a disability or a service animal poses a direct threat to others. The applicant has to follow the same rules as residents with other animals. You don’t have to wait until the person or pet injures others; if they pose a threat that they may injure others, you can deny the request.
- There is no disability-related need for the accommodation or there is no disability.
- Providing the accommodation is not reasonable, like if it imposes an undue financial and administrative burden on the housing provider or fundamentally alters the nature of the provider’s operations.
For example, someone may ask for a reasonable accommodation to have his or her trash picked up. If that is outside the scope of services the landlord provides, that request could be denied.
If the request is not reasonable, consider whether there is an alternative accommodation that would effectively address the requester’s needs.
Fees associated with assistance animals
A housing provider may not require an applicant to pay a fee, rent, or a security deposit for an assistance animal. But can you charge the tenant or deduct from the security deposit if the assistance animal causes damage to the property?
If the housing provider’s practice is to assess tenants for damages they cause, then, yes, the applicant can be charged for the damage.
What you can do to avoid problems
It’s important to know the law and your responsibilities. Establish policies and procedures that are nondiscriminatory, and consistently apply them. Recognize a request for a reasonable modification or accommodation.
Most important, document requests and how you handle them. You could take every step to do things right and still become the subject of a complaint. However, good documentation of the steps you took can keep the complaint from escalating.
If you have questions about what to do, contact the Texas Workforce Commission’s Civil Rights Division. This office is here to help you follow the law.