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CAN I REFUSE TO LEASE MY “NO-PET” APARTMENT TO SOMEONE WITH A “COMPANION ANIMAL”?

Posted by attorney Mark Campanella

Imagine the dilemma. You’re a landlord with a house or apartment to rent. As a conscientious property owner, you’ve made what you believe to be well-reasoned decision to keep the property pet free because you recognize the potential damage they can cause to the premises. Despite your best intentions, a potential tenant comes a knocking with a lease application in hand. The applicant on paper looks like the perfect tenant, except for the fact that he has a “companion animal" in tow… Even though your well-reasoned policy to exclude tenants with pets remains in effect, can you legally refuse to rent to him? The answer might surprise you.

As a landlord and/or property owner, the law is often on your side as far as permitting you to set reasonable criteria for renting to people. Maintaining a rental as pet-free or cigarette (smoke) free is hardly atypical, so one wouldn’t think that adhering to such policies could result in potential legal problems, but they could. The overriding issue relates to the American with Disabilities Act (ADA) and the obligation that it places on landlords to reasonably accommodate disabled applicants and residents – in this case, those with service pets and/or companion animals.

This discussion might be facilitated by some definitions to enhance everyone’s understanding of exactly what we’re talking about. According to the ASPCA, companion animals are defined as either “domesticated or domestic-bred animals whose physical, emotional, behavioral and social needs can be readily met as companions in the home, or in close daily relationship with humans."

With that definition in mind, we need to turn to the federal government for a moment to determine how it defines these animals and what special treatment it provides them. While you might think that the ADA codifies what is meant by the term “service animal", that guidance and is actually found in a joint memoranda issued by the Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD).

The memoranda states that “service animal" means: any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

Service animals are specially trained not only to perform tasks or work for the benefit of a disabled person, but also to behave properly in places of public accommodation. Companion animals, however, receive no such training and their primary purpose is to provide companionship (i.e., they are little more than pets!). Given the training that service animals receive, all service animals can be considered companion animals, but hardly all companion animals are service animals.

Interestingly, while the aforementioned agencies recognize and use the term “service animal", none of them use or recognize the term “companion animal", “emotional support animal" or “therapy animal" in connection with a landlord’s duties. Despite that fact, disability rights groups refuse to draw a distinction between service animals and companion animals.

There is no question that the ADA mandates that a landlord must make reasonable accommodations relative to a disabled person with a “service animal", which includes leasing to him despite a no-pet policy. What about applicants with something other than a service animal though? Given the seemingly bright line that exists as far as the ADA is concerned relative to what constitutes a service pet, you would think that you’d be on solid footing refusing to lease to an applicant with an emotional support pet based on your no-pet policy, but it’s not that simple.

Advocacy groups are vehemently promoting the notion that landlords are obligated to waive their no pet rules for

applicants who use emotional support or companion animals. They further push landlords into leasing to disabled or mentally ill persons who are merely emotionally dependent on their pets. As improbable and counter-intuitive as it might seem, many courts are endorsing these advocates’ point of view, including some courts in good ol’ New York State.

In a case dating back to 1991, Crossroads Apartments Associates v. LeBoo, Rochester City Court reasoned that a landlord had a duty to reasonably accommodate a mentally ill tenant with a companion cat if the tenant could prove to a jury that he needed the cat to help him cope with his illness. What exactly needs to be demonstrated though?

In 2004, the Appellate Division took up that very issue in the matter of Landmark Properties v. Olivo. The court

determined that a landlord had a right to refuse a tenant’s accommodation request because the applicant had provided nothing more than an ambiguous statement from his physician stating that those in a depressed state might benefit from a pet. The court impliedly installed a standard that requires a tenant to produce either by expert medical or psychological evidence that a companion animal is necessary for him to use and enjoy his apartment.

This issue, nonetheless, continues to be litigated; courts have yet to reach full consensus as to how companion pets should be treated, including those courts in New York where opinions remain divided. The tide, however, seems to be favoring advocates who support a tenant’s right to a companion animal.

At the end of the day, what’s a landlord to do when faced with so much conflicting information? Although I personally feel it’s an infringement of a landlord’s rights, it appears more likely than not that as time pushes forward, property owners will have no choice but to always “accommodate" the companion pet movement. That said, you do have the right to verify an applicant’s purported disability and the medicinal and/or emotional basis supposedly necessitating their need for a companion pet before you consent to lease to the lease. And then you should consult with counsel if you have any other questions about your rights and/or options going forward.

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