Answer: This is a typical scenario. You are entitled to ask for verification, and you should unless the need is already apparent. MHCO has forms for the tenant application and landlord agreement (if approved). You should use them! See, Reasonable Accommodation Request Form 15; Assistance Animal Agreement Form 21A.
Some questions/issues: How long has the dog been there? Does it behave? Are there other large dogs there? Do you have liability insurance if it injured someone? If your carrier says you have no coverage you should consider requiring that the tenant obtain it and provide proof of coverage to you.
You are not required to provide any reasonable accommodations that would:
- Pose a direct threat to the health or safety of others (i.e., a significant risk – not a remote or speculative risk;
- Result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by a reasonable accommodation;
- Pose an undue financial and administrative burden; or
- Fundamentally alter the nature of the provider’s operations.
(See Fair Housing Council link, here.)
Question 2: A resident has brought a pit bull into the community and asked for a reasonable accommodation. The dog appears to be aggressive. Do I have to let the dog in as an assistance animal?
Answer: When you say “appears” aggressive what do you mean? Do other tenants agree? That’s your best barometer. See “direct threat” point above. Find out the dog’s background, training, etc.
Do you have any rules regarding pets? You should, even though such rules typically don’t apply to assistance animals. But if a prospective tenant wants to come into the community with a pet, get them to sign a pet agreement up front. (See, MHCO Form No. 21.) If they immediately identify the dog as an assistance animal, you should evaluate the request. While you can’t require “training,” you can find out how long they had the animal, why they need the assistance (if it’s not apparent) and check its background.
ORS 90.530(2) provides:
A landlord may provide written rules regarding control, sanitation, number, type, and size of pets. The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.
As we know, assistance animals are not “pets” and you can’t require a “pet agreement” be signed. If the tenant requests a reasonable accommodation, you may, in my opinion, set reasonable conditions. They should be in writing and become a part of the rental agreement. Use your judgment on a case-by-case basis. Even though an assistance animal is not a “pet” does not mean common sense goes out the window. Anytime there is a risk to health and safety of others in the community, you should not permit the accommodation
My approach is very black and white. Some may disagree. But if, based upon your inquiries, observations, etc. you believe the dog is dangerous, I would refuse to allow it into the community. If the tenant or prospective tenant pushes back, fine. They may complain to BOLI. But with the relaxing of enforcement (see my recent MHCO article), you may get them to back off. I have been successful in resisting efforts to introduce an oversized dog or dangerous breed, when the landlord’s insurance carrier will not provide coverage.
The reason you want to hold firm is because relenting and allowing a potentially dangerous dog into the community could result in a child or adult being mauled and you defending against a multi-million dollar lawsuit.
Question 3: A long-term resident has applied for a dog to be an assistance animal. She has no documentation as to her disability. How do I move forward?
Answer: There’s the rub; often these disabilities are personal to the residents and not necessarily apparent. Have them describe their need in writing so you have a record of why you consented to it. I agree this can take on the appearance of a ruse, but you have to pick your fights. Assuming it isn’t a dangerous or large breed, and the resident agrees to control it and pick up after it, what’s the problem? You can still impose rules and fines regarding these things.
Question 4: A resident has asked for a reasonable accommodation for a care giver. They have no documentation as to their disability. Do the changes in federal policy apply to other issues regarding reasonable accommodation such as care givers?
Answer: I believe enforcement of the Fair Housing laws is going to be more fact-based across the board. With care givers, at least you can vet the issue easier, since you can – and should get a background check, etc. You still want the applicant to describe the accommodation they need and explain how this person will provide it. If it appears the accommodation is a ruse, you can evaluate whether it should be terminated.
Question 5: What about state laws on fair housing? Are there state fair housing statutes that are relevant even though the Federal Government has made policy changes?
Answer: Good question. Yes, Oregon has statutes mirroring the federal laws. See, ORS 659A.421. But if Oregon’s law is more restrictive, say on the number of tenants per room, the less restrictive federal law, permitting more occupants, will trump state law. Accordingly, my suspicion is that interpretation and enforcement of the Fair Housing laws will relax in lockstep with the Feds. Time will tell.
But as to accommodation requests, always seek documentation and proof. And don’t forget to consult with your attorney on these issues. “An ounce of prevention is worth a pound of cure.” ~ Benjamin Franklin, 1736.
