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Does a Lease’s “No Pet” Provision Apply to Emotional Support Animals?

All landlords should know they cannot discriminate against those who are disabled. The New York Human Rights Law prohibits discrimination throughout the State on the basis of disability, including in housing situations. However, many landlords may not be aware of how broadly the law applies especially in light of a recent court decision protecting disabled individuals who rely upon emotional support animals as a “reasonable accommodation” in treating their condition.

There is a growing use of emotional support animals to assist people in treating symptoms of their disabilities. Unlike a service animal, an emotional support animal need not be trained to perform a particular task and can even be the long-time pet of the disabled individual. Many “housing providers” ban or limit pets due to the noise and additional damage which a pet can cause to the owner’s property. The Human Rights Law, however, requires that a landlord must permit disabled residents to keep emotional support animals as a reasonable accommodation. Thus, disabled tenants are exempt from no-pet policies or policies which restrict the breed, weight, or size of pets. However, there are exceptions. The exemption does not apply if it would cause an undue hardship to the landlord. In addition, the New York City Public Health Code prohibits certain categories of animals even as emotional support animals within the City of New York. Emotional support animals that cause damage or disruption can also be excluded by a landlord. 

The law regarding emotional support animals recently came under review by the New York Appellate Division, Third Department. The Landlord in Hollandale Apartments & Health Club, LLC v. Bonesteel had a “no pet” policy which it sought to enforce against the Tenant who wanted to get an emotional support dog. The Tenant counterclaimed alleging discrimination and retaliatory conduct under the New York Human Rights Law and the Federal Fair Housing Act. The trial court not only found in the Landlord’s favor but also dismissed the Tenant’s counterclaims. On appeal, the Appellate Division reversed, finding that the Plaintiff Landlord’s refusal to reasonably accommodate the Tenant’s disability by permitting an emotional support animal to live with Tenant was actionable. The Appellate Division held the Tenant was entitled to judgment on its counterclaims for discrimination and retaliatory conduct. Thus, the Court held that notwithstanding having signed a lease acknowledging a “no pet policy”, a tenant who could establish that he was disabled and was being discriminated against by the Landlord’s refusal to make a reasonable accommodation was entitled to have an emotional support animal and continue to live in the apartment.

What does this mean for landlords? Despite this decision, landlords are not required to take a tenant’s word regarding their need for an emotional support animal. In situations where the tenant’s disability or need for an emotional support animal is not readily apparent, the landlord may request confirmation from a “treatment provider” (physician/psychologist) that the person has a disability and that the proposed animal would help treat such disability. The nature of the disability need not be disclosed to the landlord and other than confirmation from the treatment provider, the landlord cannot require additional documentation prior to accepting the diagnosis.

A landlord cannot require that a disabled tenant with an emotional support animal pay additional security, but the tenant is responsible to pay for actual damage or excessive wear and tear which is caused by the emotional support animal. The emotional support animal must be leashed or harnessed in common areas of the premises and to the extent, New York State Law requires that the animal be vaccinated, or otherwise licensed or registered, the landlord may also require the tenant to provide confirmation of compliance with these State requirements.

In order to avoid even inadvertent noncompliance with the Human Rights Law, a landlord should create and make available written policies for handling requests to permit an emotional support animal as a reasonable accommodation for a disabled tenant. Landlords must come to grips with this evolution in tenant’s rights and realize that in many, if not most, instances the tenant is likely to prevail on the issue given the limited inquiry which landlords are permitted to make regarding the tenant’s purported disability.

If you are a landlord or tenant and want to know what your rights and obligations are under New York Law, please contact one of our attorneys.

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