Disclaimer – I am not an attorney and am not providing legal advice. Always consult with an attorney familiar with your state laws before making decision related to fair housing.
There is so much confusion among the landlord and even property management communities regarding the disability accommodations that the law says we allow for a tenant who has an emotional support or service animal. I was told last week by a well-known national animal screening vendor that no verification can be asked if the tenant claims a “service animal”. This did not seem logical to me, because this same vendor does require verification from a certified professional for emotional support animals. To get a legal opinion, I reached out to the Virginia Realtor Legal Hotline to see what they had to say on the topic.
The VAR attorney who called me pointed me to Virginia Fair Housing Law 36-96.1:1, which is the Definition section. Virginia defines any animal that provides an accommodation for a disability to be an “Assistance Animal”. Here is the exact description defined in the law…
"Assistance animal" means an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. Assistance animals perform many disability-related functions, including guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. An assistance animal is not required to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals. An assistance animal is not a pet.
Without question, any individual with a disability, physical or mental, should be allowed whatever accommodation they need to make living with their disability more tolerable. An assistance animal is no different than allowing a tenant to install a wheelchair ramp or grab bars in the shower. The law says these disability accommodations must be allowed, at the tenant’s expense, and the tenant is responsible for returning the property to the original condition, if the landlord requests this.
The issue that landlords and property managers are dealing with is a high degree of fraud, with tenants and applicants claiming to require an assistance animal, to avoid pet fees or to force an allowance of a dog breed that may be listed as an exclusion on a landlord’s insurance policy. Websites are capitalizing this issue by selling fake certification cards and certificates for a fee. HUD specifically addresses these documents in the January 28, 2020 HUD Guidance Document titled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act”. This document states “In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”
The process that must be followed to determine if a tenant or applicant’s request for an assistance animal meets the Fair Housing criteria can be found in Virginia Fair Housing Law 36-96.3:2. Reasonable accommodations; interactive process.
This Virginia law states that “a request may be made for additional supporting documentation to evaluate the reasonableness of either the requested accommodation or any identified alternative accommodations.” If a person’s disability is a physical disability that is obviously visible, and you have seen this individual and observed the disability, no verification can be requested. One exception to this would be if the assistance animal is a dog that is listed as an exclusion on the landlord’s insurance policy, written verification may be requested so it can be submitted to the homeowner’s insurance carrier so an exception can be made for the accommodating dog. In my experience, insurance companies will issue an exception for the vicious breed restriction for the specific tenant and specific animal if valid documentation is provided. If however, there is no visible disability, or you have not seen the individual in person, verification of the disability and the need for the accommodation can be requested by the landlord or property manager. Mahalia "Mally" Dryden-Mason, Virginia Fair Housing Training Specialist, distributed this Assistance Animal Medical Provider Form to be used by individuals to have their need for an accommodation verified by a certified professional.
For more information about what the rules are in your state, go right to the source and read the law on your state’s fair housing site to determine what your state defines as your obligations and rights. Most state’s offer fair housing training, and every housing provider should complete a fair housing training at least annually to ensure they are keeping up with current legislation.