Can a landlord deny a tenant based on a service dog?

Posted: January 24th, 2015

Can a Landlord deny an application based on a ‘service dog’?

by Glenn Gurvitch

There are thousands of legitimate service animals for people with real disabilities that need a service animal to survive.  The current issue with ‘service animal’ certifications is becoming a National talking point as people without disabilities take advantage of the system and find loopholes with scam websites offering online certification for your pet.  This is becoming more and more of an issue as tenants get online certifications for their dogs in an effort to bypass the ‘no pets’ policy on advertised rentals. 

As a property manager I can tell you that in the last 12 months, the increase of prospective tenants calling our company with a ‘service dog’ is at least 10 fold over the last 5 years combined.  I’ve even received phone calls from prospects with dangerous breeds claiming their pit bull is a a certified emotional support dog for one of their family members.

What are landlords, real estate agents and property manager’s rights when it comes to denying an application based on a pet which also happens to be a registered service dog?  Can a landlord get in trouble with the fair housing authority for turning down an application based on a service dog listed. Many courts would find this to be discrimination. But is it?  What if a Landlord can prove that having an animal on his property would compromise the safety of tenants in a multifamily apartment complex or that that the service animal would increase insurance coverage rates?  Would this undue hardship allow them to deny a tenant based on their service animal. For complicated questions like this its probably best to seek cousel with a qualified attorney.

What is a service animal?  Defined: A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.

It is recommended that every Landlord read the HUD housing documents related to renting to a person with a service animal. Knowing how HUD views these topics will help an owner make the right judgement call on refusing a rental based on a service dog.

What is important to note is that the service dog issue becomes a talking point once the property manager or landlord states that the denial of the application for rent is being based on the service dog.  If the Landlord or Property Manager were to deny an application for another legitamate valid reason like income, eviction history, criminal history, or poor rental history then this would not be viewed as discrimination towards a disabled person with a service animal.  HUD views a service animal as part of a disabled person’s disability and they do not view a service animal as a pet.

So can a tenant get in trouble for lying about having legitimate registered ‘service animal’ that services a real disability? About 1/4 of all states have laws against ‘faking’ a service animal. But the tricky part is that there is no way for a landlord to prove that a tenant does not have a disability because of U.S. privacy act laws. Additionally, many businesses and restaurants are having issues with service dog volume increasing because anyone can strap a vest on a dog and walk into a restaurant claiming it is a registered service animal.