Kentucky's New Assistance Animal Law: What Landlords Need to Know

Posted by Stephen Marshall on

 

        As in most other states, Kentucky landlords have been flooded with requests for Assistance Animals from their tenants. Those requests have resulted in a cottage industry of websites where tenants can, upon the completion of a brief questionnaire and subsequent payment, obtain a letter that authoritatively states that the tenant is disabled and in need of an Assistance Animal to alleviate the symptoms of their mental or emotional disability. Plenty of landlords are left confused by such letters written by a “professional” in California, Nevada, or New Jersey diagnosing their tenant in Kentucky.

        Fortunately, Kentucky landlords gained a needed legislative victory this past spring on this issue with the passage of House Bill (HB) 329, which will be codified as KRS 383.085. HB 329 was introduced by Representative Adam Koenig (R-69th). It passed the House by a vote of 87-0 and the Senate by a vote of 38-0. It will take effect on July 14, 2018. Click here to read the full version of KRS 383.085. Here’s what you need to know:

  1. It defines an “Assistance Animal” to include any animal that works, provides, assistance, or performs tasks for a person with a disability or that provides emotional support that alleviates a symptom or effect of a disability. Thus, “Assistance Animal” covers both Service Animals and Emotional Support Animals, and closely tracks the standard HUD guidelines.
  2. It provides that a disabled person may request a reasonable accommodation to keep an Assistance Animal in their housing. This is no change from what the federal Fair Housing Act (FHA) already provides.
  3. It provides that landlords may require reliable documentation of the disability related need for the animal if the disability or need is not readily apparent. Again, this is no different from the FHA. However, it goes on to state that the landlord may require documentation from a person with whom the disabled person “has or had a therapeutic relationship”. “Therapeutic relationship” is defined as the provision of medical care, program care, or personal care services, in good faith, to the person with a disability by:
a. A mental health service provider;
b. An individual or entity with a valid, unrestricted state license, certification, or registration to serve persons with disabilities; or
c. A caregiver, reliable third party, or a government entity with actual knowledge of the person's disability.

              This seems to go a bit further than HUD has in the past in stating that the person providing verification of the disability or need for the accommodation be in a therapeutic relationship with the disabled person. This would seemingly rule out verification by online “practitioners” who have a single transaction with the disabled person, rather than a relationship involving the provision of services to the disabled person.

      1. In evaluating the documentation provided to verify the need for the animal, the bill allows landlords to independently verify the authenticity of any documentation. This would allow landlords to contact the purported author of the letter to verify that the person did, in fact, issue the letter. Landlords will have decisions to make about whether to grant the accommodation request when/if the author fails to respond, which I can envision being a frequent occurrence. My initial thought would be that the request would be denied pending verification from the author, especially in cases where the letter has multiple indicators of fraud (poor spelling/grammar, cannot locate the author via web searches, not on letterhead, etc.).
      2. It requires that all disabled persons who are allowed an Assistance Animal to follow the lease and any other rules that apply to other residents, as long as those rules do not interfere with the disabled person’s ability to use and enjoy the property. It further requires that the disabled person be liable for any damage caused by the Assistance Animal, as long as other pet owners are likewise liable for such damages. This rule tracks the HUD requirements. See my post on The 10 Commandments of Assistance Animals for more information on the legal restrictions that may be placed on Assistance Animals and their owners.
      3. It follows HUD’s guidance that landlords may not charge any fees, deposits, rent, or other up-front amounts for the Assistance Animal.
      4. It provides that the landlord is not liable for injuries caused by Assistance Animals that are only allowed on the property as a reasonable accommodation based on disability. While I’m glad this provision was included in the bill and passed, I question whether it will actually shield landlords from liability in cases where the landlord has reason to know that the Assistance Animal is dangerous and fails to take reasonable steps to prevent it from causing injury or damage. See my post on Kentucky’s new dog-bite liability law.
      5. The final provision is, in my opinion, the most important part of the law, as most of the preceding provisions simply track HUD’s interpretation of the FHA. The final provision makes it a criminal violation to knowingly do any of the following:
      a. Misrepresent as a part of a request for a reasonable accommodation to maintain an assistance animal in a dwelling that the person has a disability or disability-related need for the use of an Assistance Animal;
      b. Make materially false statements for the purpose of obtaining documentation for the use of an assistance animal in housing;
      c. Create or execute a document that misrepresents an animal as an Assistance Animal for use in housing;
      d. Provide a document to another falsely stating that an animal is an Assistance Animal for use in housing; or
      e. Fit an animal, which is not an Assistance Animal, with a harness, collar, vest, or sign that the pet is an Assistance Animal for use in housing.    

                      Anyone who commits one of those acts faces a fine of up to $1,000.00. In order for this provision to have a strong deterrent effect, landlords need to get the word out. My suggestion is to add a provision to your Rental Application and you Lease Agreements, as well as placing notices and/or signs in your leasing office, with the following language:

              “Our properties are committed to compliance with federal, state, and local Fair Housing laws. As such, we will gladly grant reasonable accommodations to our rules, policies, practices, or services when there is a disability related need for the accommodation in order to afford people with disabilities an equal opportunity to use and enjoy their housing. Specifically, we gladly allow Assistance Animals as an accommodation for qualified tenants with disabilities. However, please be aware that pursuant to KRS 383.085, knowingly providing false information or documents in an attempt to obtain an Assistance Animal in housing is a criminal violation punishable by a fine of up to $1,000.00.”

                      Feel free to modify this language as you see fit, but the goal is to make tenants and applicants aware that (1) you welcome disabled tenants and Assistance Animals and (2) it is a crime to knowingly commit fraud in order to get an Assistance Animal.

                      I’m sure that I will update this post with suggestions as the law gets clarified. If you’d like more information on Assistance Animals, I highly suggest you attend one of my Landlord Education Conferences (the next one on Fair Housing is on October 17) or one of the Fair Housing seminars that I conduct. If you have questions about how to act in accordance with the FHA or KRS 383.085, you should contact your friendly neighborhood attorney.


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              14 comments

              • Hi Beverly. While the law mentioned in this article is specific to Kentucky, the Fair Housing Act is a federal law that prohibits discrimination in housing across the country for certain protected classes, one of which is disability. It applies regardless of whether you use a property manager or are subsidized by HUD. There are a few very limited exceptions to which it does not apply, which include (1) owner-occupied buildings with no more than four units (typically called the Mrs. Murphy exception); (2) single-family housing sold or rented without the use of a broker if the individual owner does not own more than three such single family homes at one time; or (3) housing operated by organizations and private clubs that limit occupancy to members.

                Other than these limited exceptions, the FHA applies to prohibit discrimination in housing and would require you to allow assistance animals for qualified persons with disabilities if reasonable to do so. See my other posts on reasonable accommodations for more details.

                Stephen Marshall on
              • What if I have a few rental properties in the country that I do not use a rental manager and they are not under HUD. Do I still have to abide by the same laws?

                Beverly on
              • Erika:

                There is no value to having a dog “registered” as an emotional support animal. What you need is to provide your landlord with reliable verification that you (1) are disabled under the definition of disability outlined in the Fair Housing Act and (2) have a disability related need for the animal because it alleviates a symptom of your disability. Typically, this verification would be a letter from your treating healthcare professional.

                Stephen Marshall on
              • I want to know how i can get my dog registered as an emotional support animal?

                erika on
              • Mrs. Gates:

                You are correct, KRS 383.085 has been amended with the passage of House Bill 411 in the 2019 Legislative Session. The revisions will take effect on June 27, 2019. I’ll have a blog article up shortly describing the changes.

                Stephen

                Stephen Marshall on

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