By Bradley S. Dornish, Esq.
Over a decade ago, I experienced a protracted fight between my client landlord who had a “no
pet” building, and a long time tenant who had and wanted pets. The tenant paid to certify a dog as an
“assistance” animal, and had the dog wear a vest declaring this role. She asked
for and got a local therapist to give her a prescription for a “support” animal
to calm her nerves and aid in treatment of anxiety. The tenant bought and added
to her household another dog, without training or certification, to help the
first dog. She added parakeets which flew around the entire apartment, to let
her know when her tea was ready or her stove was left on.
Even then, the fight to evict her went on for many months, through several courts, costing
thousands of dollars. Tenants in other units complained about the dogs barking,
the birds chirping, and smells coming from the apartment. The tenant was
physically limited in her ability to take the dogs out, so they and the uncaged
birds did their business in the apartment, which smelled like a kennel or a
bird cage.
At each level, the courts struggled to require reasonable accommodations for the tenant’s
disabilities while protecting the landlord’s property and contract rights, and
the rights of other tenants in the building to a clean, safe and quiet
building. There were no easy answers, and the tenant eventually got social
service help in assisted living, where no dogs or birds were allowed.
Since that time, the pendulum has swung further and further toward supporting the rights of
tenants and HOA residents who need service or support animals, and members of
the public who seek to include such animals in public accommodations or travel.
Just search emotional support turkey, peacock or squirrel to see what airlines
have been dealing with as passengers seek to bring their animals into cabins,
and do so without paying fees. Many support groups for those who truly need
service or emotional support animals share the frustration of landlords, HOAs
and business owners toward those who abuse the system to have their pets in
violation of housing and public accommodation rules against pets.
My most recent case involving questionable service or support animals is going on right now,
and involves a tenant not controlling two alleged support dogs in a no pet
building, and another tenant threatening to move because of issues involving
the dogs. Service and support animal abuse in housing may not make the news as
frequently as cases involving turkeys, peacocks and squirrels on airplanes, but
HOAs and landlords have to deal with these issues and reasonable accommodations
on a daily basis.
For the record, I am not at all against pets. I have a Bichon Poodle who greets me every
morning and night, keeps me company while I work at my home desk, is on my lap
as I write this article, and even comes to work with me on occasion. I allow
pets in my rental units, charging appropriate fees and deposits, and requiring
pet owners to control their pets so as not to cause annoyance to others. I do
oppose those without medical need who use laws designed to protect and help
those whose medical conditions are benefitted by animals to get around rules
against pets in apartments and HOAs.
With the support of PROA, as well as real estate brokers, and many advocates for those with real
need for such animals, the Pennsylvania Legislature passed the Assistance and
Service Animal Integrity Act on October 17th, it was signed by the
Governor on October 24th, and becomes law on December 23rd.
The new law defines assistance and service animals consistently with federal law, and
specifically permits landlords and associations with pet policies to request
written documentation of both the disability and the disability related need
for the animal, unless either is readily apparent or already known to the
landlord. The law further establishes minimum standards for the documentation
to be provided. That documentation must
be in writing, and must be “reliable and based on direct knowledge of the person’s
disability and disability-related need for the assistance animal or service
animal”. That requirement should help to curb the use of mail order
certifications. The final requirement is that the documentation must describe
the disability-related need for the assistance or service animal.
The law then
takes the important step of making misrepresentation of entitlement to an
assistance or service animal a crime under PA law. The acts which constitute
crimes include lying about a disability or disability related need for an
animal in housing, and lying about a disability to obtain documents for use of
a service or support animal in housing. These crimes are misdemeanors of the
third degree, and can lead to jail time on conviction.
Lesser crimes under the law include creating a document misrepresenting that an animal is a
service or support animal for use in housing, providing a false document
indicating service or support animal status to another for use in housing, and
fitting an animal not an assistance or service animal with a collar, harness
vest or sign designating the animal as an assistance or service animal for use
in housing. These violations are summary
offenses, each subject to a fine up to $1,000.00 per occurrence.
Equally important to landlords and HOAs dealing with residents who have service or
support animals, the law grants landlords and associations immunity from
liability for injuries to others caused by an assistance or service animal
permitted on the property as an accommodation to one with a disability.
Hopefully, the Assistance and service Animal Integrity Act will curb the attempts by some
residents to abuse the designation of service and support animals in rental and
HOA housing. It will certainly provide some protection to HOAs and landlords
from liability for injuries caused by such animals, and an opportunity to refer
suspected abusers of service and support animal status for criminal
prosecution.
The author, Bradley S. Dornish is a licensed attorney, title insurance agent and real estate instructor in Pennsylvania. He can be reached at [email protected]. November 2018