Landlord question: "Service animals"...Could it be that we are exempt?
November 14, 2014 6:30 PM   Subscribe

My husband owns one small rental house. He had a tenant for several years (who has recently moved). Now that we are screening for new tenants we realize that we must educate ourselves anew about laws pertaining to service animals. We are completely on board about doing things lawfully, but it hasn't been easy to determine what we can and can't do. There seem to be tons of gray areas.

In trying to understand what kind of documentation we could ask for (and whether or not we can check on the authenticity of it) I also came across the exemption that exists and I wonder if you can read this (below) and tell us if our owning one home and one rental makes it so we would be exempt. We are in Oregon and don't use any type of property manager.

I know that we should probably contact a lawyer to ask this (and I know that "you are not my lawyer"), but I thought maybe you smart people could decipher this (below) just to give us a heads up. We started screening just yesterday and had many inquiries. No exaggeration, 1 out of 2 people told us that they have a "service dog".


(I got this from: http://servicedogcentral.org/content/faq/61)
What are laws on renting to a person with service dog?
Contrary to popular belief, some landlords ARE exempt from the regulations of the Fair Housing Amendments Act. The exceptions include (a) buildings with four or fewer units where the landlord lives in one of the units, and (b) private owners who do not own more than three single family houses, do not use real estate brokers or agents, and do not use discriminatory advertisements. The FHAA also does not apply to publicly owned (government owned) housing or to section 8 housing. Other laws, such as Section 508 of the Rehab Act and Title II of the ADA may apply in some cases. Consult a qualified attorney to learn which laws if any apply in your specific situation.

Your opinion...? ( Thank you. :)
posted by naplesyellow to Law & Government (22 answers total) 3 users marked this as a favorite
 
I'm not an attorney, but by my read with the information you gave us, you'd be exempt.
posted by summerstorm at 6:52 PM on November 14, 2014 [2 favorites]


If you want to not rent to an applicant and are checking to see if you are safe to do so, you'd be better off telling them the place is no longer available rather than naming anything as an excuse. You are probably exempted, but that doesn't stop anyone from taking you to court or reporting you to the city for investigation of tenant code violations.

Never give a reason other than "no longer available."
posted by Lyn Never at 7:08 PM on November 14, 2014 [1 favorite]


I suspect you're going to need to look at Oregon law, because state laws are allowed to be stricter than the federal laws. The Fair Housing Association of Oregon seems to be the relevant agency, and you can contact them at 503/223-8197 Ext. 2 (Portland metro area) or 800/424-3247 Ext. 2 or at information@FHCO.org.
posted by jaguar at 7:10 PM on November 14, 2014 [1 favorite]


The reason you need to ask a lawyer about this is because, on general principle, what looks like the obvious reading of a statute is not always the way courts have interpreted that statute. But, in more practical terms, the FHAA is not necessarily the only applicable law here, and so you can't just decide whether it applies and then move on. In particular, Oregon appears to have state law here that does not precisely mirror the federal statute. That's the reason why the reference you're citing yourself says to consult a lawyer. The relevant thing you need to take out of that passage is to consult a qualified attorney.

Definitely do not go denying housing on this basis before you've consulted with someone knowledgeable in your jurisdiction, whether that's the reason you actually give them or not. If it turns out that you are in fact required to comply with a disability accommodation law, I think it's ridiculous that I even have to say this, but please don't try to give misleading information to people to justify discriminatory renting decisions.

It kind of sounds, from the tone of your question, like you think this whole "service dog" thing, with quotes, is questionable, but the service animals in this day and age are used for much more than just the blind, and it's kind of a bad start to be assuming bad faith in this. I mean, if the requirement doesn't apply to you, it doesn't apply to you, but that doesn't mean those people are faking their disabilities and it's really distasteful to suggest that.
posted by Sequence at 7:18 PM on November 14, 2014 [17 favorites]


I looked into this in California, and though I (like you) seem to be exempt from the FHA requirements, California law was much stricter.

What I did was google around until I found a nonprofit housing provider that housed recently-homeless individuals (ie, a group that I believed would err on the side of fairness toward tenants). They were operating in a city with even tighter local housing laws than mine. They had their service animal policies and forms posted online as a resource for potential tenants. I removed their logo (as much for their sake as mine) and used those.
posted by slidell at 8:07 PM on November 14, 2014 [1 favorite]


By the way, my comment immediately above is definitely not some legally-foolproof approach. It's a pragmatic approach for those of us small-time landlords who don't have the funds to hire attorneys or even belong to some rental association that provides a bunch of legal forms for us. I knew that a minor change in the other towns' laws and my jurisdictions' could result in my approach being flawed. I was pretty sure that this wouldn't be the case for a number of specific reasons. But do be careful. You might also read the relevant Nolo book.
posted by slidell at 8:13 PM on November 14, 2014


And last comment, yeah, I found the same thing you did. I'm renovating a second unit now and using dog-proof flooring on the assumption that I will end up having to accommodate a service animal.
posted by slidell at 9:31 PM on November 14, 2014 [1 favorite]


NAL. I'm going to recommend that you check out the Fair Housing Council of Oregon site. If the answer isn't there, they can help you figure out which way to go next.

I'd suggest you NOT to take the advice to just "tell people with service animals that it's no longer available". All they have to do is have someone call who doesn't have a service animal or mention one or a disability, and if you talk with them like it's available, you've just been caught. Sure, most of them won't stand up for themselves and turn you in... but you wouldn't enjoy the one that does.

And yes, such sampling is done ANYWAY to proactively work toward the elimination of discrimination. I know of several caseworkers who encourage renters to report housing discrimination, because it's probably the least-frequently penalized wrong out there.
posted by stormyteal at 11:02 PM on November 14, 2014 [2 favorites]


Oh, almost forgot! Depending on where you live, there may be extra local rules in place. Check for these, too. FHCO has links for some of those, too, I believe.
posted by stormyteal at 11:06 PM on November 14, 2014


Ah, and I keep reading and am rewarded:
Partway down this page
"What About the Mrs. Murphy’s Exemption?
The federal Fair Housing Act exempts owner-occupied buildings with no more than four single-family housing units sold or rented without the use of a broker per year. This is commonly referred to the “Mrs. Murphy’s exemption.”

However, Oregon law has removed this exemption for any housing provider operating within the state. There are very limited and narrow circumstances in with a landlord with a room-share (i.e.: roommates sharing private spaces such as a bathroom) situation may be exempt from portions of the Act. Please contact our Fair Housing Hotline at 503/223-8197 Ext. 2 (Portland metro area) or 800/424-3247 Ext. 2 or information@FHCO.org for detailed information."
posted by stormyteal at 11:09 PM on November 14, 2014 [3 favorites]


Here in LA, we have a sorta Landlord Business Association. Membership as a landlord gives you access to monthly lectures on all sorts of things from leases to plumbing and construction, use of their jurisdiction specific Lease Agreements Docs and Application Docs, PLUS discounted credit and housing checks through their service, PLUS free unlimited calls to their Legal Hotline so you can ask questions just like this!!

Do you have one of these organizations for Oregon? Ask around. They can be immensely helpful. (Once, I had an applicant during interview notify me upfront he had a disability, was a former attorney, and then he started forwarding his mail to the address before I had a chance to confirm or deny his application. Naturally, his finances did not qualify him for the rental. I took care of that potential disaster rather quickly and effectively with check-ins to my landlord legal helpline. Lifesaver!!)

I can get into all sorts of minutiae about the designation of "service animals," but it might mean zero in your jurisdiction. You're right, tho, it is kinda bullshit and I could print a service animal cert off the internet (or get a doctor or therapist to write a recommendation) to cover my ass as a tenant, but that doesn't mean I really have a service animal.*

You need an excellent credit and housing check service. You need proper legal advice. You need solid guidelines for choosing and rejecting applicants that protect you and your property.

ProTip: While staying within the law (YOU NEED TO KNOW THE LAW BACKWARDS AND FORWARDS) I was often able to honestly and lawfully deter potentially problematic rental situations before applications might have been submitted by sussing out how the property wouldn't meet their needs and disclosing this up front. I never lied or anything, but for example, if obvious partiers wanted to rent, and there were cranky neighbors with a history of calling the police about loud music and parties - I mentioned it outright.

You want your tenants to be happy. You want you to be happy. You want the neighborhood happy.

It's not so much managing or manipulating expectations as it is about being totally honest about the facts. Being honest always wins the day.
----

*Service animals are tough because a percentage are legit, and are owned by awesome pet caretakers. A larger percentage in this category is an excuse to house poorly trained animals that irritate neighbors and destroy property. (Ask me how I know!)
---

Step #1 is getting super familiar with the laws in your jurisdiction. I recommend lectures and general handbooks by organizations over individual lawyer consults.

Step #2 is getting a great feel for people, getting conversant with interpreting background checks, and developing good instincts.

Management companies don't necessarily shield you from this work, since so many of them are crap and don't have your best interests at heart. It's hardly worth hiring one to facilitate one rental, at any event.


If you plan to stay in the rental game (and you should!) your best bet is to do this homework now, and let this effort carry you through.

Once you have solid practices in place for choosing tenants and facilitating maintenance, it's really quite simple. But you have to put the work in up front.

PS. If you peruse my answer history on questions like this, I'm super adamant that folks NOT take on this endeavor. You're different. You are already doing it, you just want to know how to be better at it. I applaud this!

Hope I helped.
posted by jbenben at 11:40 PM on November 14, 2014 [2 favorites]


Ah, I notice stormyteal posted a comment with the Oregon Fair Housing Authority's phone number.

A note about that....

The quality of info you'll get from a state, city, or county tenant's hotline super duper varies.

In LA, sometimes I know the law better than the person answering the phone. That's annoying.

Massachusetts state helpline is Top Notch!

In NYC, expertise varies, especially if the question involves a Rent Stabilized Unit.

In California, even tho I'm LA, I now defer to the state hotline, because they are far more professional than LA state or county.

ALL local non-governmental tenants organizations, while well meaning, seemed to be staffed by law interns with half the knowledge they need to answer more nuanced questions effectively.

I feel like, IMHE, individual lawyers are on par with most tenants orgs, unless they've been in the business 15 years or more.

I usually defer to whatever the state has to say, FWIW.

By all means, phone around and collect opinions. Don't be surprised if whoever you are talking to can't get specific. That's par for the course. Unless you are talking to a state tenant/landlord government agency. Those folks usually have themselves super together and are exceedingly professional, IMHE.

Again. Hope this helps. Good luck!
posted by jbenben at 11:56 PM on November 14, 2014 [2 favorites]


It's a pragmatic approach for those of us small-time landlords who don't have the funds to hire attorneys or even belong to some rental association that provides a bunch of legal forms for us.

If you can't afford competent legal advice to ensure that you're operating your business according to the laws and regulations applicable in your jurisdiction, I'm sorry to say it, but you simply cannot afford to be in the land-lord-ing business.

If you absolutely refuse to talk to a lawyer, then I think you need to assume that all provisions of these laws do, in fact, apply to you.

Look, you're talking about a dog. Worst case scenario, it does some damage and you need to keep the renter's deposit to fix it up when they leave. So, in order to possibly save yourself a little trouble, you're going to run the risk of violating an anti-discrimination law? Sounds like a bad idea.

Aside from all that: a lawyer can tell you not only if you have to abide by these rules but also, if you do, what you're permitted to ask of the applicants. You may be able to ask for proof of disability and also proof that the service dog has been trained and certified.

The only way to be sure of either of those points, though, is to find a lawyer.
posted by toomuchpete at 12:14 AM on November 15, 2014 [1 favorite]


"It kind of sounds, from the tone of your question, like you think this whole "service dog" thing, with quotes, is questionable, but the service animals in this day and age are used for much more than just the blind, and it's kind of a bad start to be assuming bad faith in this. I mean, if the requirement doesn't apply to you, it doesn't apply to you, but that doesn't mean those people are faking their disabilities and it's really distasteful to suggest that."

As a former landlord and current renter, at least in Los Angeles, I could not disagree with this statement more.

Genuine service animals receive formal training.

There's a whole quasi-legal realm of service animal designation out there where neither the owner or pet have done more than get a doctor's note or printed an online certificate - no training for owner or pet required.

The difference between these two circumstances is VAST when it comes to the health and safety that the designation of "service animal" is meant to protect.

In general, true service animals are unobtrusive, and totally focused on their caretaker and their job of taking care of them. This commenter is correct that service animals are not just for the vision impaired, and that sometimes the owner's disability is not readily evident (seizure dogs come to mind.) But the plain fact is, all animals that truly qualify and deserve exemption as service animals are demonstrably well trained for their role.

I think the other designation is "comfort animal." And while someone's pet may comfort them, the lack of training might be a huge discomfort or health violation to others. Depending.

These two things are not the same. As much as some folks who wish to benefit from the designation of "service animal" wish them to be.
posted by jbenben at 12:43 AM on November 15, 2014 [7 favorites]


Also, keep in mind that a you may ask for a letter from the person's doctor (or another eqivalent that states that they do qualify for a service animal, but that you may not inquire as to the nature of their disability. It isn't up to you to decide whether or not their disability is "enough". Also, if you read further on the specifics of the Oregon law, further down the same page I linked, you will encounter this:

"Can I Have (and Advertise) a "No Pets" Policy?
It is perfectly within a housing provider’s right to restrict the presence of animals on the property and / or to prefer some animals over others. It is not illegal under fair housing laws to advertise such a preference.

It should be noted, however, that while a “no animals” statement is not necessarily a fair housing violation, it raises the question of whether or not the housing provider understands his / her obligation to allow a housing consumer to have an animal if it is a disability assistance animal. So while they may not allow dogs as pets, housing providers must allow assistance animals and they CAN NOT charge pet rent, a pet fee, or a pet deposit associated with the service animal. Click here for more information about service animals"

Here's the not allowed to charge a pet deposit rule in the Oregon law:
"4) A landlord may not charge a tenant a pet security deposit for keeping a service animal or companion animal that a tenant with a disability requires as a reasonable accommodation under fair housing laws."

Not finding a specific statement that notates pet "rent" is disallowed, but here's a newspaper article that shows the landlord lost on both their deposit and pet rent demands.

And some links to food for thought on emotional support animals, which are often the kind people consider not "real" service animals because the disability they address is generally invisible.

In summary, it probably isn't a good idea in Oregon to deny service animals without prior attorney advisement that it's reasonably safe to do so in your specific circumstances. Potential fines are on the large side.
posted by stormyteal at 2:32 AM on November 15, 2014 [1 favorite]


Oh, and in regard to the "genuine service animal" statement, there are two different sets of federal law about disability. The ADA is the one that applies to service animals out in public, like in restaurants. Fair Housing (federal) and state and local laws apply to housing, and are, in general, more flexible.

As I mentioned above, Oregon law specifically includes both "a service animal or companion animal that a tenant with a disability requires" in the statutes.
posted by stormyteal at 2:39 AM on November 15, 2014 [4 favorites]


Even if you find a perfect tenant without a service animal you need to know the laws inside and out anyway because at any time your tenant could aquire the need for a service animal and then what are you going to do?
posted by Room 641-A at 5:30 AM on November 15, 2014 [3 favorites]


Thank you, everyone. I appreciate all these well thought out answers.
posted by naplesyellow at 7:15 AM on November 15, 2014 [1 favorite]


As others have said, service animal laws regarding housing are different from those in public places, and are governed by a different set of laws, and anyone telling you that you can ask about training certifications or that you're allowed to inquire about the potential tenant's disability is setting you up for a discrimination lawsuit and you should ignore them.
posted by jaguar at 8:01 AM on November 15, 2014 [3 favorites]


Aside from all that: a lawyer can tell you not only if you have to abide by these rules but also, if you do, what you're permitted to ask of the applicants. You may be able to ask for proof of disability and also proof that the service dog has been trained and certified.

These questions sound closer to the ADA questions than the FHA questions. There is more about all of this in this FHA document. Do be careful about what you ask. You can't ask the nature of their disability, for instance. Also, someone above suggested asking for documentation from a doctor, but I believe you are not allowed to require that it be a doctor, though you may be able to ask that it be from a knowledgeable third party.
posted by slidell at 3:53 PM on November 16, 2014 [1 favorite]


To distinguish: service animals usually have to be trained to perform at least two tasks for the disabled person, whether the task is turning on a light switch or licking their face to bring them out of a panic attack. Emotional support animals generally do not have to be trained and, while they are not subject to the same accommodations as service dogs in public, they are a reasonable accommodation in housing. More info
posted by IndigoRain at 5:47 AM on November 17, 2014 [1 favorite]


I think the trained-to-do-work thing is ADA. FHA is probably the one you're dealing with, so I'd be careful about rejecting someone's animal just because they're not trained to do specific tasks. I'm not positive, but it's something to double-check.
posted by slidell at 11:02 PM on November 22, 2014


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