HUD: Tenants with Non-traditional Support Animals Must Demonstrate Need

By Kimberly Rau, MassLandlords, Inc.

According to the Department of Housing and Urban Development (HUD), tenants who want to have a “non-traditional” animal as a support animal must prove there is reason for their exotic choice. What constitutes a non-traditional animal may surprise you. For instance, even though more people in the U.S. have pet snakes than rabbits, HUD does not consider snakes a commonly kept pet. It does, however, offer protections for rabbits. HUD guidance on snakes, rabbits and other animals was issued in early 2020 and easily missed, so we are covering it in this article. But first, we’ll cover some key terms.

Though people sometimes keep these kinds of animals as companions, HUD is clear that animals that are not “commonly” kept as pets do not need to be accepted as support animals without a clear need. (License: Derived Unsplash)

Support Animals vs. Service Animals

Support animals are different from service animals. Service animals are only dogs, and are trained to perform specific tasks that aid a person with a disability. Support animals may be animals other than dogs, and may or may not be trained to perform a specific task.

An example of a service animal is a dog trained to help guide a blind person. An example of a support animal not trained to carry out a specific duty could be a dog that offers emotional support to a veteran with PTSD. A support animal that does perform a job might be a bird that alerts someone with hearing loss that there is someone at the door.

However, not all animals are created equal in the eyes of the government.

Typically, landlords cannot deny tenants a service or support animal, even if the lease says pets are not allowed. This is because service and support animals are not classified as pets and are protected under the Americans with Disabilities Act and the Fair Housing Act, respectively.

There are guidelines in place for verifying a tenant’s disability in order to provide a reasonable accommodation (allowing an animal even if the lease says no pets). If your tenant has an obvious disability and the need for their service animal is evident, it would be intrusive to ask prying questions. But if you are not clear why your renter is asking for an emotional support animal, you can ask for verification. HUD has a lengthy document explaining how to go about verifying this need and accommodating requests for support animals. Your verification process will involve learning about your renter’s need for an accommodation, but will not include learning private details about their specific disability.

HUD’s Guidance on Support Animals

Service animals are only dogs. The classification used to also include miniature horses, but this has been phased out. According to HUD, support animals that should be reasonably accommodated are animals “commonly kept in households.”

By HUD’s definition, commonly kept animals include dogs, cats, small birds, rabbits, hamsters, gerbils, “other rodents,” fish and turtles. HUD also says that “any other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes” should be accommodated.

Reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals are not considered “common” and do not need to be reasonably accommodated, except in rare cases. For instance, there are certain circumstances where monkeys would be allowed as an accommodation, which we detail below.

When You Should Allow an Exotic Support Animal

These rare exceptions include when an animal is individually trained to perform a task that cannot be performed by a dog; when a health care professional can confirm that the person cannot have a dog due to allergies or that the symptoms or effects of the person’s disability would worsen without the animal; or when the person can properly keep and maintain the animal outdoors in a fenced yard.

As an example, HUD suggests a person with spinal paralysis might have a trained capuchin monkey who has been trained to open a bottle of water, insert a straw, and hold it to the person’s mouth so they can drink. The person has a clear need for an assistance animal, and a dog cannot perform these tasks, so the accommodation for an exotic animal should be granted. Note that the Massachusetts-based Monkey Helpers, which trained these capuchins, no longer places monkeys with individuals. However, they are still providing support for the monkeys who have already been placed in homes, so you may encounter a renter who has one.

In these cases, the burden is on the renter to prove they need an exception to HUD’s rule against exotic animals. In the capuchin monkey example, the person’s disability is obvious and a simple question should clear up the matter: “What task is your animal trained to do?”. Otherwise, the tenant would need to furnish proof from their medical provider that they have an allergy to dogs, or that without an exception their disability would be made worse.

Clark and the MCAD v. the New Bedford Housing Authority: No Snakes Allowed

In 2011, New Bedford resident Melinda Clark filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that the New Bedford Housing Authority was discriminating against her by not allowing her to keep her snake as a support animal.

Representatives for the housing authority stated that their leases did not allow snakes due to the risk of salmonella. The housing authority was also concerned that the snake, a ball python, could cause physical risk to other residents as pythons wrap around the necks of their prey. (The MCAD document specified this body part. However, ball pythons eat small mammals in the wild, suggesting they constrict whatever they can get around, not just necks.) There were also concerns about the presence of vermin on the property, as the snake ate dead rats. When the housing authority discovered Clark’s snake, they started eviction proceedings against her.

Clark testified that her snake was kept in a glass container in her apartment, though she later also said she took the snake outside of the home sometimes, including allowing it to “play in the grass in front of a nearby bowling alley.” She reported that her daughter removed the snake without warning, bringing it to Clark’s mother’s house, and that afterward she had psychological issues that required medical attention.

According to the MCAD hearing determination report, Clark had a history of mental health issues. However, Clark filed a complaint against the housing authority on the basis of religious discrimination, stating her Wiccan practices required a snake.

Clark’s psychiatrist testified that Clark’s mental health conditions were made worse when the snake was removed from the apartment. When the MCAD spoke with the psychiatrist, the doctor reportedly did not want to speculate on the benefits of a pet snake specifically, and instead focused on the problems that arose for Clark without her snake present. At some point, Clark brought the snake back to the apartment without telling the housing authority.

The MCAD determined that Clark was disabled within the meaning of the law, but also said Clark had not met the burden of proof that keeping her four-and-a-half-foot ball python constituted a reasonable accommodation for her psychiatric disability.

“While Complainant and [Clark’s psychiatrist] both testified at the public hearing that the pet snake has substantially improved Complainant’s mental health and that the loss of the snake would seriously jeopardize her emotional well-being, those claims must be balanced against the impact of the snake on the entire New Bedford Housing Authority community,” the MCAD hearing officer wrote in the official hearing determination.

Because Clark was unable to prove that her snake would not be a risk to others, and because a snake is not considered a commonly kept household animal, she was not granted a reasonable accommodation. The housing authority was not judged to have acted in a discriminatory manner.

Conclusion: Open a Dialogue with Your Tenants; Find Solutions

Whenever a renter requests a reasonable accommodation of any kind, the first thing you want to do is open a dialogue with them. Ask the appropriate questions without prying into the private details of their disability. Try to find solutions that work for both of you. Maybe you don’t want your renter to have a chicken in the house (understandable), and HUD wouldn’t insist you accommodate that request, given that chickens qualify as barnyard animals. But if your yard is fenced in and your municipality allows chickens, perhaps you could offer to let them keep it outside in the appropriate enclosure.

Remember, while you cannot charge pet rent for a service or support animal, you do have some protections in place. If an animal damages your rental, you can typically withhold the cost of repairs from the security deposit. If the animal is causing a nuisance or posing a danger to other animals or people, you can seek to have it legally removed. You can also sue for damages that exceed the amount of the security deposit.

In any case, make sure your actions are in compliance with the law, to avoid legal headaches later. Having to answer an MCAD complaint made against you, for example, can be an expensive and lengthy process. If you should be providing a reasonable accommodation, do so. If you are not compelled to provide that accommodation, but can find a compromise that makes both you and your renter happy, so much the better for you both.