MAY A LANDLORD CHARGE A PET SECURITY DEPOSIT FOR A SERVICE ANIMAL?

By Douglas K. Marsico, Esq.

A landlord has an appointment to show an apartment to a potential tenant. Upon meeting the outside the apartment, the landlord observes that the tenant has a service dog. The tenant explains that the dog aids him in dealing with a hearing disability. The landlord notes that while she normally has a "no pet" policy, in order to accommodate the tenant's disability, she would allow the service dog. However, the landlord explains that the tenant would need to pay a pet security deposit. Has the landlord violated fair housing laws by requiring a pet security deposit?

In answering the question, let's start with the basics. The Federal Fair Housing Act prohibits discrimination in housing on the basis of a disability. Disability discrimination occurs if a landlord refuses to make a "reasonable accommodation" in rules, policies, practices or services when such accommodation is necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. A "reasonable accommodation" is a change, exception or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

So in the above example, the landlord is willing to make a reasonable accommodation due to the tenant's disability by making an exception to the "no pet" rule. So far, so good. The landlord, however, is understandably concerned about the service dog since it is still a dog and dogs do what dogs do. Dogs have accidents. Dogs scratch at doors. Dogs get sick. Dogs get fleas. Dogs gnaw on things. Funny, as I was typing that, I forgot if I was writing about dogs or my kids...well, except for the fleas, I hope. Anyway, it certainly sounds reasonable for the landlord, in special consideration of allowing the dog, to negotiate an extra fee to serve as a "pet deposit." Indeed, isn't the landlord treating the disabled tenant the same way as she would treat any tenant who requested an exception to the no pet rule?

Unfortunately, the landlord, despite her good intentions, is in violation of fair housing laws by charging the extra fee for the reasonable accommodation. In 2004, a Joint Statement of the Department of Housing and Urban Development and the Department of Justice, stated that charging an extra fee or requiring an additional deposit from a disabled tenant as a condition of granting a reasonable accommodation violates the Fair Housing Act (See http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf). If the service animal causes damage to the premises, the landlord may seek recovery of those damages from the disabled tenant or out of the security deposit. But, charging fees or an additional deposit in anticipation of potential damage is not allowed.

Mr. Marsico is an attorney with Caldwell & Kearns which serves as general counsel to PAR. A portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline.