Q. I represent a landlord and recently received an application from five friends seeking to rent a single-family residence in Fairfax. Is it a Fair Housing violation to reject the application, even though the property has five bedrooms?
A. Rejecting an application to rent a single residence to five unrelated people is likely not discrimination on the basis of familial status under Fair Housing laws. Furthermore, most local municipalities, including Fairfax County, have enacted zoning ordinances that include restrictions on the number of unrelated persons who can live in a single residence. For the purposes of this question, we assume that the five friends are unrelated. However, Article 2 Part 5 of the Fairfax County Zoning Ordinance states that no more than four unrelated persons can live in a single residence, unless the property is approved as a group residential facility. The landlord’s obligation to comply with the zoning ordinance is an objective basis for denying the application without violating Fair Housing laws.
Q. I represent a landlord and have a prospective tenant who has notified me of his intent to have an emotional support animal in the property, but my landlord client has a “No Pets Policy.” Do Fair Housing laws apply?
A. Under the Fair Housing Act, an applicant with a disability may request that the landlord make a reasonable accommodation to the existing “No Pets Policy” and permit the applicant to have an emotional support animal in the dwelling.
An accommodation request can be denied if an applicant has failed to adequately support the request or has failed to respond to appropriate requests for information from the housing provider. A reasonable accommodation request cannot be denied simply because a housing provider cannot readily determine that the applicant has a disability. 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.
Even if the disability is readily apparent, a housing provider may request information about the connection between the disability-related need and the particular assistance animal where the connection is not readily apparent. Remember, it is not permissible to demand specific details about the disability itself or to see the applicant’s medical records. The Department of Housing and Urban Development (HUD) has provided examples of proper documentation.
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.
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 client, 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.
The NVAR Board of Directors has recently approved new forms for July 1, 2018 release which will assist our members in handling reasonable accommodation requests. Stayed tuned for details.
Members with specific questions are encouraged to contact the Legal Hotline at NVAR.com/legalhotline
for further information.