State Specific Question About: MASSACHUSETTS (MA)

You cannot deny a tenants request for a service animal, nor can you charge them more for rent or deposit.

For a Service Dog, such as a hearing assistance or seeing eye dog, which is specially trained to provide assistance in daily living, they need to request it in writing but you can't deny them.

For a Therapy Dog, which is an emotional support animal rather than physical assistance, they need to request it in writing, and provide documentation from their Service Provider (doctor, therapist, etc.) that they have been prescribed such a therapy.

Don't assume just because Joe Blow says he is depressed and needs his pit bull that you have to accommodate him. They have to do and provide certain things, and always in writing.

This is such a horrible topic! I have started to write an article about Service Animals, but it is a work in progress.

The bottom line is that this is a complete quagmire, a path filled with pits and traps.

The Americans With Disabilities Act has a bunch of provisions about Service Animals that do pertain to rental housing. The ADA pertains to "places of public accommodation." So you can ignore it.

Federally, we as Landlords have to worry about the federal Fair Housing Act, 42 U.S.C. § 3601 et seq., as amended by the Fair Housing Amendments Act of 1988 ("FHAA").

Federal law “defines discrimination as, among other things, "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(2). Two adjectives, "reasonable" and "necessary," figure prominently in this definition, modifying both the term "accommodations" and [Landlord’s] obligations under the law.”

The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well [FN5] United States v. Village of Palatine, 37 F.3d 1230, 1234 (7th Cir.1994) ("determining whether a requested accommodation is reasonable requires, among other things, balancing the needs of the parties involved."); see also Vande Zande v. State of Wisconsin Dep't of Administration, 44 F.3d 538 (7th Cir.1995) (employer not required under Americans with Disabilities Act to make unreasonable accommodations, in the sense of cost exceeding benefit). Similarly, the concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability.

In order to qualify for a reasonable accommodation under the FHA, § 504, or the ADA, the tenant must meet the statutory definition of having a "disability." The statutes recognize three broad categories of disabilities: (1) a physical or mental impairment that substantially limits one or more major life activities (such as walking, seeing, working, learning, washing, dressing, etc.); (2) a record of having such an impairment; or (3) being regarded as having such an impairment.

Being able to substantiate one's disability is critical in requesting a reasonable accommodation. In the event that a landlord does not allow the emotional support animal, and the tenant pursues legal action, the court will require evidence of the tenant's disability. For an example of a case in which the court rejected an emotional support animal claim for lack of evidence of a disability, see Housing Authority of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (Conn. Super. Ct. Jan. 14, 1997) ("[G]iven an appropriate factual predicate, mental handicap may warrant reasonable accommodations, including the keeping of an animal in a public housing complex. However, in the instant case, that factual predicate is missing and the defendant has failed in her burden of proving that reasonable accommodations must be made.").

Courts have consistently held that a tenant requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal. See, e.g., Majors v. Housing Authority of the County of Dekalb, 652 F.2d 454 (5th Cir. 1981); Housing Authority of the City of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (Conn. Super. Ct. Jan. 14, 1997); Whittier Terrace v. Hampshire, 532 N.E.2d 712 (Mass. App. Ct. 1989); Durkee v. Staszak, 636 N.Y.S.2d 880 (N.Y.App.Div. 1996); Crossroads Apartments v. LeBoo, 578 N.Y.S.2d 1004 (City Court of Rochester, N.Y. 1991).

No specific training or certification is required. The two courts that have addressed this issue directly - the Court of Appeals for the Seventh Circuit and the U.S. District Court of Oregon - have held that the only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of an individual with a disability. For a more detailed discussion, see Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) and Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (Or. 1998).

In assessing a tenant's request for emotional support animal as a reasonable accommodation, the landlord is entitled to consider the administrative, financial, or programmatic repercussions of allowing an animal onto the premises, including the potential disturbance to other tenants. Typically, a landlord will have a difficult time establishing that an emotional support animal constitutes a fundamental alteration or undue burden. As noted earlier, in its internal regulations governing federally assisted housing, HUD specifically states that allowing an assistive animal does not constitute an undue burden. See Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, exhibit 2-2 (1998) (explaining that allowing an assistive animal is not a fundamental alteration).

If the emotional assistance animal is particularly disruptive, or the tenant fails to take proper measures to ensure that the animal does not bother other tenants, however, the landlord may be justified in denying the accommodation or ultimately filing for an eviction. See, e.g., Woodside Village v. Hertzmark, FH-FL Rptr. ¶ 18,129 (Conn. Sup. Ct. 1993), in which the court found that a federally assisted housing complex did not violate the Fair Housing Act by evicting a resident with mental illness for failure to walk his dog in designated areas and to use a pooper-scooper.

Then, you have to worry about your state law as well!

I have a limited set of questions on the specific care and guidance for owners of Dogs and Cats. When an applicant wants to rent a property that I normally designate a "NO PETS BUILDING" but they need a "Service Dog" or "Companion Pet" and have documentation to prove their need -- I ask my animal questions.

I have always rented to people with dogs and actually have had LESS damage from the dogs than the people. I always say that I would rent to dogs instead of people if I could........

Service dogs are so well trained that THEY probably will be the only one who cleans the house up for you.......

By the way, even if you don't want to rent to people with dogs, service dogs are exempt. You HAVE to rent to them. And no extra fees or deposits can be charged

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We got stuck with a "emotional support rabbit" that hopped around the house freely, dropping poo and pee everywhere.

Her case worker went all legal-postal on me for even suggesting the res supply some documentation and produced papers saying I was not even allowed to ask.

The next person with a LEGIT service animal happily paid the $150 Non-Refundable Animal Registration Fee and $35 per month on the rent.

I once had a lady call who said she had to have a dog due to depression. She slipped when she said her dog suffered from depression & could not give it up. This really happened, but most conversations with potential tenants are not so obvious. So when in doubt, do not make decisions or statements that would conflict with the law. These people would have to follow the same rules as everyone else, with the exception of charging additional pet fees/rent. It is best to meet them and their pet in person to see if they are for real.

We also had another lady call who had 3 small service dogs that were therapy pets. She never filled out an application, so that was the end of it.

We have had potential tenants come look at units that were actually seeing if we discriminate for race/disability etc.

One time, a lady came to look at an upstairs apt. After climbing back down the stairs with no apparent difficulty, she announced that she had a disability & couldn't do stairs. She was told she could fill out an application if she wished. We never heard from her again.