Under the Fair Housing Act, an applicant with a disability may request that the landlord make a reasonable accommodation to an existing “No Pets Policy” and permit the applicant to have an assistance animal in the dwelling. The request can be made at any time, and the fact that the tenant requests the accommodation after signing the lease is irrelevant.

When evaluating reasonable accommodation requests, it’s important for landlords to recognize that each case is unique. An assistance animal is not a pet. If the landlord has a policy restriction on animals, the landlord must entertain this request to avoid violating state and federal fair housing laws.

Sometimes, the disability-related need for an assistance animal is not readily apparent or known to the landlord. However, a reasonable accommodation request cannot be denied simply because a housing provider cannot readily determine that the applicant has a disability. In those cases, Virginia law allows the landlord to evaluate the requester’s disability-related need for the animal (Va. Code § 36-96.3:1(B)). Documentation from a reliable source may be requested if the disability is not apparent. However, the Fair Housing Act does not allow questioning of individuals whose disability is readily apparent (e.g. blind tenant needing a guide dog). NVAR offers several forms to assist members as they navigate the process:

First, tenants requesting an accommodation should submit NVAR form K1378 (Request for Reasonable Accommodation). If the tenant’s disability and/or disability-related need for the service animal is not readily apparent, the landlord can also request that the tenant and a verifier complete NVAR form K1380 (Verification of Disability). After reviewing these forms, the landlord may respond by sending either NVAR form K1377 (Assistance Animal Denial Notice) or K1376 (Assistance Animal Approval Notice).

If the applicant has met the criteria in the request for an accommodation, the landlord must provide an exception to its policy in the dwelling and common areas. However, an accommodation request can be denied if the assistance animal presents a particular risk of harm to others or the property of others or otherwise creates an undue burden. The analysis of whether a particular animal presents a risk relates to the actual animal in question and not other criteria, such as a particular breed or size. However, if the animal in question poses a risk of harm to others or would otherwise create an undue financial burden for the housing provider, the request can be denied. The housing provider must demonstrate a legitimate basis for denying a request because the law presumes that the accommodation should be granted.

There are few bright-line rules and each request requires an individualized, case-by-case analysis. If the disability related need for the assistance animal is verified, most accommodations are likely going to be reasonable. If the landlord approves the accommodation request, the parties may complete NVAR form K1375 (Assistance Animal Addendum).

For real estate professionals, your client should make the determination whether to grant an accommodation request. The real estate professional could request documentation from the applicant in support of the client’s accommodation request, but should always make it clear to the applicant that the request is being made by the housing provider, not the real estate professional.

Under Article 11 of the Code of Ethics, Realtors® should not undertake services outside of their field of competence. Determining the “legitimacy” of the disability-related need or whether a particular animal is connected to the need is likely beyond the competence of a real estate professional. The Fair Housing Act does not distinguish between service animals and assistance animals. Certification of assistance animals is not well regulated, so reliance on certificates pulled from unverified sources is not recommended.

NVAR: https://www.nvar.com/realtors/laws-ethics/legal-blog/what-realtors-should-know-about-assistance-animals

DPOR: http://www.dpor.virginia.gov/FairHousing/Housing_People_with_Disabilities/