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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              22 comments

              • I live in a HUD housing apt. My son has ADHD and we got him a dog to help him with focusing and it helps him a lot. His doctor wrote us a letter saying that the dog was a support dog for him having ADHD we have had the dog now for 3yrs now and we keep up on everything for her. In the last yr I’ve been diagnosed with anxiety and depression and I got me a dog to help and it has been and my doctor wrote me a letter out for the housing office and i was denied and was told we couldn’t have 2 service dogs in are apt even tho it for to different people with 2 different illnesses can they denied me my service dog that I’ve been working with to bring her into my home. My dog is up to date on everything and house train. Please any help will do. Thank you.

                Rachel on
              • My family and I have been trying to find a larger place to move to in Somerset (Pulaski County) for three years now. However, we keep hearing one of the same two answers. “I am allergic and your service dog and emotional support animals will prevent me from inspecting the place or do repairs. Or “My homeowners insurance won’t cover any animals on the property.)

                Two of us have PTSD with depression and we each have our own emotional support animal. And I have MS which affects my balance so I have a Service Dog trained to help me walk, keep me from falling, and to alert me to when I am starting to get too tired.

                I have shown a statement from my neurologist located in Lexington, Kentucky that says I need the service dog.

                It’s gotten to the point where they are putting it in their ads “NO PETS! NOT EVEN SERVICE ANIMALS!” Or if they do accept pets, they have to weigh less than 10 lbs.

                Then I was told that a bill was passed in 2018 that allowed landlords to legally claim allergies to animals even if they didn’t have any so they could refuse service/emotional support/assistance animals for ever more legally.

                It’s not just here either, we have tried as far away as Lexington, Louisville, Bowlingreen and down further south but staying in Kentucky.

                Bo on
              • Hi Jenn. Your questions are exactly the kind that I’ll be answering in my upcoming webinar on Assistance Animals. You can get more information here: https://web.laaky.org/events/Assistance-Animals-Webinar-111/details.

                Stephen Marshall on
              • So, what if you send a letter to a resident telling them they cannot have their dog because it goes against breed restrictions, then they contact someone online to write a letter for them? The letter states they can have the animal because of a mental disability. However, they only contacted this dr. online because they were told they could not have the dog on the property. If they got this document online, and you can verify that an actual dr. wrote it, even though they never met the patient, can they still have the dog on property?

                Jenn N on
              • Hi Leslie W. A landlord may refuse to rent to you if you fail to otherwise qualify to reside at their property, but may not refuse to rent to you because you are disabled or have an ESA. You should disclose that you have an ESA up front if the property prohibits pets or charges a fee for them, as you’d be requesting a waiver of such rules for your ESA. Hope this helps.

                Stephen Marshall on

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