Bailey Eagin* Law Librarian, Locke Lord LLP
Adjunct Faculty, UNT Dallas College of Law
ISSUE 7 | SPRING 2020 | LANDLORD & TENANT ISSUES |
As the number of pets in the United States continues to climb, pet owners often question what rights they have regarding companion animals in rental properties. In the article below, Bailey S. Eagin gives a brief overview of pet owners’ rights when it comes to rentals and housing, including distinctions between companion animals, service animals, and emotional support animals.
According to a 2017 study by the American Veterinary Medical Association, the total number of household companion animals (“pets”) in the United States exceeded 142 Million.¹ Due to a recent trend in younger generations toward raising dogs and cats instead of babies, it is safe to assume that the number is even higher in 2020. With so many pets, owners often question what rights they have regarding companion animals in rental properties. This article will give a brief overview of pet owners’ rights when it comes to rentals and housing, including distinctions between companion animals, service animals, and emotional support animals.
What is the current status of laws covering companion animals in rentals?
In the absence of a statutory provision allowing pets, landlords can generally prohibit or restrict tenants from keeping pets on the premises. However, more and more cities, and even some international countries, are passing legislation to combat landlords’ “no pet clauses.” For example, West Hollywood, California banned restrictions on companion animals for the elderly, the disabled, or individuals living with HIV/AIDS.³ Other cities have taken a different approach. For example, New York City has not banned “no pet clauses” outright, but the city is prohibiting landlords from the selective enforcement of these clauses. This means that under the New York City Code, once a companion animal resides in a multiple dwelling unit for three consecutive months–and the landlord knows this information–the “no pet clause” may no longer be enforced.⁴ The key thing to remember about pet restrictions in rentals is that if your area does not specifically ban “no pet clauses,” those clauses will typically be held valid, especially if the purpose of the clause is to upkeep the overall maintenance and comfort of the rental property.
What other restrictions can landlords or cities enforce on tenants and their animals?
Other than outright banning animals, landlords and cities often ban certain species and breeds of dogs. Most of those clauses or codes have been upheld. Landlords have the right to place restrictions on animals. Such restrictions include allowing or disallowing dogs, cats, birds, or fish, or limiting the size, breed, and number of animals in a rental unit.⁵ For example, the U.S. District Court of Connecticut found that a landlord’s provision to ban dogs—and not cats—in their housing units was not unreasonable, and it did not violate equal protection because it legitimately related to the preservation of peace and wellbeing of tenants.⁶
Breed Discrimination Laws (BDLs) among dogs have also become a major issue with landlords and municipalities. A majority of BDLs stem from the fear of “vicious” or “dangerous” dogs. Most state statutes allow cities and municipalities to choose which BDLs to enact and enforce, but not all. Recently, states like Nevada and Delaware have banned dogs from being labeled “vicious” or “dangerous” solely based on breed or appearance alone.⁷ Many landlords adopt similar BDLs within their leases and will often add weight and size restrictions in order to control the number of “large” and “potentially destructive and dangerous dogs” on their property. This decision is often based on pressure from insurance companies and the inability to obtain property insurance on properties that allow certain breeds that are deemed a liability.⁸ Such “dangerous” dogs often include “Pit bulls,” Rottweilers, German Shepherds, Doberman Pinchers, Chow-chows, wolf-hybrids, and newly added Dalmatians and Siberian Huskies.⁹
What about non-traditional house pets such as exotic animals?
Despite a common misconception that all exotic animal activities are governed by federal law, state and local laws dictate restrictions on exotic animals as pets. Many states currently have statutes that seek to limit ownership of exotic animals, while others have decided to just defer to federal permitting of exotic animals as exhibits instead of pets. There are currently twenty (20) states that have comprehensive bans on exotic animals as pets.¹⁰ This type of ban is prohibits ownership of wild cats, reptiles, and non-human primates.¹¹ Only four (4) states have no regulations that directly address private ownership of exotic animals, but these states may require health certificates or import permits.¹² The remaining states either have partial bans or require licensing for private ownership. An example of a common requirement can be found in the Texas Health and Safety Code under Sections 822.103 and 822.107. Under these statutes, owners of “dangerous wild animals” are required to have proper permits and maintain liability insurance.¹³
Are there any exceptions to companion animal restrictions or bans?
Yes. These exceptions could also be considered pet owners’ rights. The first exception is known as Pet Ownership in Assisted Rental Housing for the Elderly and Handicapped (POEH).¹⁴ Under this federal law, owners and managers of federally assisted rental housing for the elderly or handicapped are not allowed to prohibit or restrict any tenant from having or owning common household pets. Although the landlord can have the animal removed if it becomes a nuisance.¹⁵
The second exception applies to tenants in public housing. Per federal law, tenants may own one or more common household pets if they meet housing agency policies and abide by applicable state and local laws. However, the housing agency can restrict dangerous breeds and the number of pets per unit based on the unit’s size.¹⁵
The third exception is based on the Fair Housing Act (FHA). The FHA makes it unlawful to discriminate against an individual in the terms, conditions, or privileges of the rental of a dwelling (i.e., a home) because of a person’s disability.¹⁷ This means that if a person needs a service animal, they cannot be denied housing or denied their service animal. However, there is a balance to meeting the disabled person’s needs while minimizing the burdens placed on others, including other tenants in the housing unit or those managing the property. Recently, the U.S. Department of Housing and Urban Development (HUD) issued notices to help clarify what constitutes a “service animal” under the FHA. HUD suggested that the definition of “assistance animal” be designated as “a certified service animal, emotional support animal, or any other emotional support animal, or any other animal that works, provides assistance, or performs a task for the person who has a disability or provides emotional support that alleviates symptoms”. HUD also wants to change the term “service animal” to “assistance animal” due to the broader meaning. Please note that HUD does not limit the definition of “assistance animals” to dogs only.¹⁸
Unlike the FHA, the Americans with Disabilities Act (ADA) does not contain a definition or explanation for a service animal, but it does support agency decisions for fair housing.¹⁹
What is the difference between emotional support animals and service animals?
Until HUD’s suggestion to expand the definition of “assistance animals” to include emotional support animals, fair housing exceptions for tenants living with an animal applied only to service animals. There is often confusion between emotional support animals (ESA) and service animals. ESAs do not require any specific training or certifications to be considered an emotional support animal. In fact, a disabled individual is only required to prove a diagnosable emotional condition that can be eased through the companionship of an animal.²⁰ In contrast, service animals are individually and specifically trained to help the disabled person with a certain task or tasks, beyond mere presence.²¹ Examples of tasks include guiding people who are blind, alerting to and protecting a person who is having a seizure, or calming a person with Post Traumatic Stress Disorder, but this list is not exclusive.²² As of now, only dogs are being accepted as service animals, whereas emotional support animals do not have that restriction.
Hopefully this article sheds light on an individual’s ability to share their rental home with a companion animal. Please remember every state and city has authority to decide whether to allow restrictions on animals in rental properties. Therefore, it is important to always check your state and local government websites for listed ordinances and codes to know what is and is not allowed in your area.
*As a life-long pet rescuer and vegan, Bailey S. Eagin is deeply invested in animal welfare issues and the law. In law school, she interned with the Kentucky Human Society and held the position of researcher for an animal non-profit that focused on strengthening animal welfare laws in Kentucky. Eagin also served as a student member and Notes Editor for the University of Louisville Journal of Animal and Environmental Law. Today, Eagin is a member of UNT Dallas College of Law’s adjunct faculty, teaching Animal Rights Law, and a Reference Law Librarian for Locke Lord LLP where she focuses on library collection maintenance, attorney research training, and research requests.
Sources ¹ Heather Jensen, Ed., AVMA U.S. Pet Ownership and Demographics Sourcebook, American Veterinary Medical Association, accessed at: https://www.avma.org/resources-tools/reports-statistics/us-pet-ownership-statistics (Dec. 2017). This calculation includes dogs, cats, and birds. Pets such as fishes and mice were calculated only by percentage per household. ² Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals, 11 Animal L. 69, 72 (2005). ³ West Hollywood, Cal., West Hollywood Municipal Code, § 17.52.010.2(g) (Current through Ordinance 19-1087 and the November 2019 code supplement). ⁴ New York City, NY, New York City Admin. Code § 27-2009.1(b) (2020). ⁵ Huss at 99. ⁶ Bogan v. New London Housing Authority, 366 F.Supp. 861 (1973). ⁷ See Anti-Breed-Specific Legislation by State, Best Friends Animal Society, accessed at https://resources.bestfriends.org/article/anti-breed-specific-legislation-state (2019). This is a compilation of all state legislation regarding breed discrimination laws and enforcements within the United States. ⁸ David Favre, Animal Law: Welfare Interests & Rights 2nd Edition, 78-80 (2d ed. 2011). ⁹ Id. ¹⁰ Map of Private Exotic Pet Ownership Laws, Animal Legal & Historical Center, accessed at https://www.animallaw.info/content/map-private-exotic-pet-ownership-laws (2020). ¹¹ Id. Some states with these bans allow for ownership only under certain licenses but still do not allow for private ownership. ¹² Id. ¹³ Tex. Health & Safety Code Ann. §§ 822.101-116 (2020). ¹⁴ 12 U.S.C.A. § 1701r–1 (2020); 24 C.F.R. § 5.300 et. seq. ¹⁵ Id. ¹⁶ 42 U.S.C.A. § 1437z–3 (2020). ¹⁷ See 42 U.S.C.A. § 3601 et. seq. (2020). ¹⁸ Id. ¹⁹ 28 C.F.R. § 36.104 (2020). ²⁰ Rebecca F. Wisch, FAQs on Emotional Support Animals, Animal Legal & Historical Center, accessed at https://www.animallaw.info/article/faqs-emotional-support-animals#s1 (2019). ²¹ Id. ²² Id.
