With April being Fair Housing Month, this “Best of the Legal Hotline” addresses fair housing issues such as emotional support animals, HUD occupancy standards, a seller advertising a preference for families with children, and tenants engaged in a domestic dispute.
Emotional support dog
A broker is the property manager for student rental units. One of the current tenants informed him that she has a mental disability, and per her psychiatrist, must get a dog as part of her therapy. The lease states that no pets are allowed, and this apartment is above a restaurant. Does the owner, under any federal law, need to allow this pet in the apartment?
The federal Fair Housing Act protects the right of people with physical or mental disabilities to keep emotional support animals, even when a landlord’s policy explicitly prohibits pets. The law generally requires the owner or property manager to make an exception to the no-pet policy as a reasonable accommodation as long as the accommodation does not constitute an undue financial or administrative burden for the landlord or fundamentally alter the nature of the housing. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space.
If a tenant needs a support animal, she should request a reasonable accommodation, preferably in writing, from the owner/property manager. The request should state the disability — if not readily apparent — and indicate a relationship between her ability to function and the assistance of the animal. In addition, the tenant should include a letter or prescription from an appropriate professional, such as a therapist or physician, verifying the need for the support animal. The prospective tenant need not disclose the details of the disability nor provide a detailed medical history. Federal law does not include any specific requirements for registration or credentials for the animals involved.
Support and service animals that assist persons with disabilities are considered to be auxiliary aids and generally are exempt from an owner’s pet restrictions, pet deposits and extra pet rent. Service animals include guide dogs for persons with vision impairments, hearing dogs for people with hearing impairments, and emotional assistance animals for persons with chronic mental illness.
The broker should proceed carefully because the broker cannot and does not want to make any representations about the legal rights of the tenant or landlord. The broker or landlord may consult with legal counsel to discuss the owner’s legal rights relating to service and support animals in rental properties.
Support animal resources
Occupancy standards
Can a landlord’s rental screening standards or lease terms provide that only two adults and two children are allowed in the rental unit?
The Federal Fair Housing Amendments Act of 1988 added the protected class of family status. Family status was added as a protected class under Wisconsin law in 1992.
Both the federal law and state statutes provide that it is not discrimination based on family status if property owners comply with any reasonable federal, state or local ordinances which relate to the maximum number of persons permitted to occupy a housing unit, and these standards are fair and reasonable. Neither law prohibits an owner or property manager from restricting the number of occupants so long as the number of occupants, and no other factor relating to protected classes, resulted in the restriction. Occupancy standards may be created to meet legitimate reasons, such as health and safety or capacity of utilities or infrastructure.
The U.S. Department of Housing and Urban Development (HUD) in 1998 issued guidance setting a general standard of two persons per bedroom to be used in enforcing the federal fair housing law, but this is not an ironclad, automatic standard. Such an occupancy policy is generally reasonable under the Fair Housing Act, but such a policy might sometimes unfairly exclude families with children and violate the Fair Housing Act, as was the case in a recent HUD $15,000 settlement with a Connecticut management company. The manager refused to renew the family's longstanding lease because five people were too many to live in their 1,464 square-foot two-bedroom apartment with a separate den/study. The company had a policy restricting occupancy to two persons per bedroom regardless of size. This settlement agreement puts apartment owners and other housing providers on notice that they must always consider the size of the rooms and overall apartment when setting occupancy standards and not automatically rely on the two persons per bedroom standard without further consideration.
HUD’s guidance requires consideration of factors such as the size of the bedrooms and of the overall unit, the age of the children, the unit configuration, other physical limitations of the housing, state and local law, and other relevant factors.
Occupancy standards resources
Advertising preference for families with children
A listing client posted on social media and “tagged” the agent in that post. The post reads: “Our house is up on the MLS 12345 today! Perfect for a couple with children. 1.3 acres to run and play with the dog! ... Thanks Amy Agent for listing it with Best Brokerage!” Does the broker have an obligation to attempt to have the client remove the post or remove the tagged agent?
Per the WB listing contracts, unless modified, the seller gives the broker the exclusive right to market and sell the property, so the seller really should not be engaging in advertising, however innocent or well-intentioned. If the listing is modified and the seller engages in advertising, the broker may wish to first discuss fair housing law with the seller and offer pointers about avoiding fair housing violations:
Describe only the property — not the potential buyers! Advertisements describing the properties (two bedrooms, cozy, family room), services and facilities (no bicycles allowed), or neighborhoods (quiet streets) are not discriminatory on their face.
Avoid any limitations on the number or ages of children, or preferences for adults, couples, singles or families.
Fair housing advertising resource
- April 2007 Legal Update, “Avoiding Discrimination in Advertising and Racial Steering:” www.wra.org/LU0704.
Safe housing concerns
Two tenants’ names are listed on the lease: the boyfriend and the girlfriend. She wants him removed from the lease and out of the property; he, however, wants to reconcile. Each of the tenants has called the police and each has been arrested for a domestic dispute. Can the landlord remove one of the two tenants from the lease?
Generally tenants have joint and severable liability for a lease. An individual tenant or the landlord cannot unilaterally change the contract without the consent of the remaining parties. However, in Wis. Stat. §§ 704.16 and 704.44, Wisconsin adopted the Safe Housing Act, which sets forth procedures for either a landlord or tenant to terminate the tenancy. When there is imminent threat of serious physical harm to the tenant or a child of the tenant, and the tenant provides the landlord with proper notice and documentation, the tenant may terminate the tenancy.
Likewise there is a process for landlord to terminate the tenancy of an offending tenant if the offending tenant (1) commits one or more acts, including verbal threats, that cause another tenant or a child of another tenant in the rental unit or apartment complex to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises; and (2) is the named offender in any injunction protecting another tenant or another tenant’s child (may or may not be based on sexual assault or stalking), prison release condition, or criminal complaint alleging sexual assault, stalking or domestic abuse against a tenant or a tenant’s child. The landlord must give the offending tenant written notice requiring the offending tenant to vacate on or before a date that is at least five days after the notice is given.
As an alternative, the landlord and tenants may agree to amend the lease to remove one tenant or end the lease term. Another consideration may be whether one or both tenants have breached their lease by their conduct. If so, the landlord may potentially be able to terminate the lease and either enter into a different lease or evict the tenants. These issues and the applicability of the statutes may be discussed with the landlord’s attorney.
Safe Housing Act Resources
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.