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Can a Landlord Request Proof of a Disability and the Need for an Assistance Animal?

Posted by Debbie Baum in REBNY Legal Question

Question

I am a real estate broker and I represent the landlord of a building that has a “no pet policy.” A tenant in the building has informed the landlord that she requires an Assistance Animal to help alleviate her anxiety. May the landlord request verification that (i) the tenant has a disability and (ii) the Assistance Animal is required because of the disability?

Answer

First, a real estate broker should never request this type of verification on behalf of a landlord. Rather, if a landlord would like to verify that a tenant has a disability or the need for an Assistance Animal, the real estate broker should instruct the landlord to speak to an attorney who can advise the landlord on the appropriate way to handle the request. The landlord (or landlord’s attorney) should then communicate directly with the potential tenant.  It is my opinion that a real estate broker should not serve as an intermediary in this situation.  There is too much potential for inappropriate statements or requests on the part of the real estate broker.

Nevertheless, this situation most likely fits the limited circumstances under which a landlord may request to verify a tenant’s need for an Assistance Animal. A landlord may make such a request under two circumstances: (1) if the disability is not readily apparent or known to the landlord or (2) if the need for the requested accommodation (i.e. the Assistance Animal) is not readily apparent or known to the landlord. Keep in mind that Federal Law defines a person with a disability as “any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment.”

For example, because of the nature of the disability, if an individual requests an accommodation for an Assistance Animal in order to alleviate her anxiety, it is likely that neither the anxiety nor the need for the Assistance Animal is likely readily observable. Thus, in this situation, a landlord most likely can request verification. On the other hand, if a blind individual requests an accommodation for a guide dog, because of the nature of the disability, both the blindness and the need for the Assistance Animal is likely readily observable. Thus, in the guide dog situation, the landlord most likely cannot request verification.

According to the US Department of Housing and Urban Development, “A [landlord] also may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.” Instead, if a landlord has the right to request verification of a tenant’s disability, the landlord should do so by requesting a letter that has been completed by a qualified third party verifier. The third party verifier does not need to be a doctor, but he or she must be a professional who is familiar with the disability. In the letter, the third party verifier should attest that (1) the tenant is actually disabled, (2) the tenant needs the accommodation because of his or her disability, (3) the particular accommodation is actually necessary, (4) the accommodation helps the individual cope with his or her disability, and (5) he or she would testify to the information under oath.

Important Tip: Issues relating to fair housing, including the protected category of “disability,” are very complex.  Real estate brokers must seek counsel if they are confronted with questions or situations that they are not sure how to handle. 

For information on the difference between an Assistance Animal and a Service Animal please see our previous Legal Line Question of the Week on Assistance Animals and Service Animals.

 Neil B. Garfinkel | Debbie Baum
Neil B. Garfinkel,
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP
31 Jul 2016 no comments

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