Assistance Animals in Housing

Sorting through the myths and misunderstandings

 Debbi Conrad  |    April 10, 2013

Confusion and misunderstandings often prevail when it comes to a tenant or condominium unit purchaser with disabilities who asks to have a service or therapy animal in the dwelling. Finding the applicable law is often the first piece to the puzzle.

Misunderstanding # 1: The ADA applies

One common mistake is the tendency to assume that the answer is found in the Americans with Disabilities Act. While the ADA does address service animals, in most cases the ADA does not apply to residential housing such as private apartments and condominium units. Rather, the ADA applies to places of public accommodation such as restaurants, retail stores, libraries and hospitals as well as commercial facilities such as offices/buildings, warehouses and factories. However, Title III of the ADA does cover public and common-use areas at housing developments when these areas are open to the general public, for example, a rental office.

In those instances when a public accommodation is involved and the ADA does apply, the ADA definition of a “service animal” is limited to a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, and when reasonable, trained miniature horses. Other animals, whether wild or domestic, do not qualify as service animals. This ADA definition does not affect or limit the broader definition of “assistance animal” under other laws.

Misunderstanding # 2: Wisconsin law must apply 

Landlords and condominium managers are attracted to the Wisconsin statute regarding assistance animals because it provides a nice, concise set of rules and addresses recognizable assistance animals, like a seeing-eye dog. An animal that helps a person who has a vision, hearing or mobility impairment is well understood, and Wis. Stat. § 106.50(2r)(bm) also requires that the animal have training credentials. It is fairly easy to understand why an exception should be made for such an animal and why it is discrimination to not allow the person and his service dog to reside in the housing. Wis. Stat. § 106.50(2r)(bm) also provides in the case of the rental of owner-occupied housing that the person can refuse the animal if the owner or a family member is allergic to the animal.

As it turns out, Wisconsin law only applies if the property is a one- to four-unit property that is owner-occupied (the Mrs. Murphy exception). In most other cases when the question is whether an assistance animal must be allowed in a housing unit or dwelling, the answer comes from the federal Fair Housing Act.

Misunderstanding # 3: We can’t make exceptions to the no-pet rules 

Understandably the manager of an apartment complex or a condominium project that does not normally allow pets may assume that these rules cannot be violated under any circumstances and may become frustrated to learn that exceptions sometimes must be made for persons with disabilities. There also may be suspicion over whether a person requesting an assistance animal is just looking for an excuse to have a pet and anxiety over the expected reaction of other tenants or unit owners who have been told they cannot have any pets.

The federal Fair Housing Act and Wis. Stat. § 106.50 prohibit discrimination in housing on the basis of disability:

  • Has a physical or mental disability (for example, hearing, mobility, speech and visual impairments, chronic alcoholism, chronic mental illness, AIDS, Human Immunodeficiency Virus infection, mental retardation, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease and emotional illness) that substantially limits one or more major life activities;
  • Has a record of such a disability; or
  • Is regarded as having such a disability.

One type of disability discrimination prohibited by the act is the refusal to make reasonable accommodations. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy a rental unit or apartment. The law generally requires exceptions to any no-pet policy as a reasonable accommodation, as long as the accommodation does not constitute an undue financial or administrative burden for the rental property/condominium complex, or fundamentally alter the nature of the housing. Thus the act often allows people with disabilities to keep assistance, support or companion animals, whatever the label might be, even when a rule or policy explicitly prohibits pets.

If a prospective tenant or buyer needs an assistance animal, he or she should request a reasonable accommodation, preferably in writing, from the landlord, condominium association or manager. The request should state the disability if that is not readily apparent and indicate the relationship between the person’s ability to function and the assistance of the animal. In the case of assistance animals, an individual with a disability should demonstrate a nexus between his or her disability and the function the service animal provides, for example, alerting individuals who are deaf to sounds, pulling a wheelchair or fetching items. A letter or report from an appropriate professional, such as a therapist or physician, verifying the need for the assistance animal, may be requested should the need for the animal not be clear. The prospective tenant or purchaser need not disclose the details of the disability nor provide a detailed medical history, and such information should be kept confidential. 

Misunderstanding # 4: We can charge extra for assistance animals 

Therapy, assistance and service animals required for disability are not considered “pets.” Animals that assist persons with disabilities are considered to be auxiliary aids and generally are exempt from pet restrictions, extra security deposits and extra pet rent. Such animals include, for example, guide dogs for persons with vision impairments and companion animals for persons with chronic mental illness. This includes all assistance animals regardless of the label, breed or species. Wis. Stat. § 106.50(2r)(bm) specifically says it is discriminatory to charge extra compensation for the animal.

If a tenant’s or unit owner’s assistance animal causes damage to the unit or the common areas, the landlord or condominium association may generally charge for the cost of repairing the damage or deduct it from the tenant’s security deposit.

Misunderstanding # 5: Assistance animals must have a training certificate 

The landlord or condominium cannot ask for proof that the animal is trained under the act. The federal Fair Housing Act does not include any specific requirements for registration or credentials for the animals involved. While many animals are trained to perform certain tasks for persons with disabilities, others do not need training to provide the needed assistance. For example, emotional support animals do not need training to ameliorate the effects of a person’s mental and emotional disabilities. Assistance animals do not have to be just dogs; they can also be other animals, such as cats or monkeys.

On the other hand, Wis. Stat. § 106.50(2r)(bm), when it applies, requires that the animal have training credentials.

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.

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