No. The property owner cannot require the tenant to pay an additional deposit as a condition for allowing the assistance animal in the dwelling. However, the tenant would still be legally responsible for any damage caused by such an animal.
Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can a property owner require the tenant to pay an additional deposit as a condition for allowing an assistance animal in the dwelling?
A tenant has requested that she be allowed, as a reasonable accommodation for her severe depression, to have an emotional support animal in the property. The animal she would like to bring in is a pit bull. The property owner has heard terrible things about pit bulls, like how dangerous they are and does not want that type of dog in the property. Can the property owner reject this request?
Possibly, but not without an assessment of whether the accommodation is needed and reasonable. After receiving such a request, the property owner must consider:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal?
If the answer to question (1) or (2) is "no," then the federal Fair Housing Act does not require a modification to a property owner's "no pets" policy, and the reasonable accommodation request may be denied.
If the answers to questions (1) and (2) are "yes," the federal Fair Housing Act requires the property owner to make a reasonable accommodation to a "no pets" policy, unless doing so would impose an undue financial burden or would fundamentally alter the nature of the housing provider's services.
The request for the accommodation may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal's actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can the property owner require the tenant to provide documentation evidencing the need for an assistance animal?
It depends. Once the request has been made, if the tenant's disability is known or readily apparent to the property owner, but the need for the accommodation (the assistance animal) is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation. However, if a person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester's disability or the disability-related need for the accommodation.
Again, once the request has been made, if the tenant's disability is not obvious, a property owner may request information necessary to verify that the person meets the federal Fair Housing Act's definition of "disability" (i.e. has a physical or mental impairment that substantially limits one or more major life activities), describes the needed accommodation, and shows the relationship between the tenant's disability and the need for the requested accommodation.
A prospective tenant learns from a neighbor that the former tenant was infected with the HIV virus. The prospective tenant contacts the property manager to inquire about whether this is true. Is the property manager required to disclose such information?
No. The federal Fair Housing Act prohibits agents from making unsolicited disclosures concerning whether sellers or property occupants have tested positive for HIV or have been diagnosed with AIDS. Additionally, the Texas Real Estate Licensing Act (TRELA) states that licensees shall have no duty to inquire about, make a disclosure related to, or release information related to whether a previous or current occupant of real property had, may have had, has or may have AIDS, HIV-related illness or HIV infection.
The National Association of REALTORS® provides guidance on how to respond to an inquiry like this and suggests stating: “It is the policy of our firm not to answer inquiries of this nature one way or the other since the firm feels that this information is not material to the transaction. In addition, any type of response by me or other agents of our firm may be a violation of the federal fair housing laws. If you believe that this information is relevant to your decision to buy/rent the property, you must pursue this investigation on your own.”
What is a "disability" under the federal Fair Housing Act?
"Disability" means a person with physical or mental impairment which substantially limits one or more of a person’s major life activities; a record (history) of the impairment; or being regarded as having the impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The term does not include current illegal use or addiction to a controlled substance, but could protect persons who are recovering from substance abuse.
What is a reasonable accommodation?
A reasonable accommodation is a change in rules, policies, practices, or services that is feasible and practical under the circumstances. Under the federal Fair Housing Act, discrimination can include a property owner’s refusal to make a reasonable accommodation in the rules, practices, or services if necessary to afford the tenant, or any person associated with the tenant, equal opportunity to use and enjoy a dwelling.
A property owner must grant a tenant’s request for a reasonable accommodation unless there is no disability, no disability related need for the request, the request poses a direct threat to the health or safety of other residents, the request would result in substantial physical damage to the property of others, or the request is unreasonable. Unreasonable requests include requests that are unduly burdensome or would fundamentally alter the landlord's operations.
For example, a landlord of an apartment building may have a policy to assign parking places based on how long a tenant has lived at the building. Under this policy, new tenants get parking places farthest from the building’s entrance. A new tenant with a disability who asks for a parking place close to the door is making a request for reasonable accommodation.
If that same new tenant instead asked for 24-hour valet parking at the apartment building, that would likely be an unreasonable request.
If a request is denied, the landlord should consider and discuss with tenant whether there is an alternative accommodation that would address the disability related need without being unduly burdensome. If such an alternative exists, the landlord must grant the alternative accommodation.
What is a reasonable modification?
A reasonable modification means a structural change to existing premises to allow a person with a disability the full enjoyment of the premises. A reasonable modification can be made to the interior, exterior, public areas, or common use areas of a building. Under the federal Fair Housing Act, discrimination because of a disability can include a refusal to permit, at the expense of the person with the disability, a reasonable modification of an existing premises to be occupied by the person if the modification is necessary to afford the person full enjoyment of the premises of a dwelling.
For example, a tenant with mobility challenges who asks to add a ramp to the front door of his rental is making a request for a reasonable modification. However, if that tenant were to ask to create a new entrance through a brick wall to bypass the stairs, he is likely making an unreasonable request.
When reasonable, a property owner may condition permission for a modification on the tenant agreeing to any of the following:
(1) Restore the interior of the premises to the prior condition, ordinary wear and tear excepted
(2) Provide a reasonable description of the proposed modification, as well as reasonable assurances that the work will be done in a workman-like manner and that any required building permits will be obtained
(3) Pay into an interest-bearing escrow account, over a reasonable amount of time, a reasonable amount of money not to exceed the costs of restoration, if necessary to ensure funds are available for restoration. The interest accrues to the benefit of the tenant. An owner cannot increase the security deposit. Note: A resident cannot be charged for restoring common area or exterior modifications.