Can I require a pet deposit for all animals?

Whether a landlord, association or property manager has to allow someone with an assistance animal to live at the property despite animal restrictions is a frequent question. Also, if you have to allow the animal, can you still request a pet deposit?  First of all, even if the property does not allow certain animals, if that animal provides a service or emotional support for a person with disabilities as documented by a medical professional, you generally have to accept that person and their animal into your property. For example if some condominium units do not allow cats and you are advertising one of many units for rent using a broker, if a prospective tenant has an emotional support cat as documented by a medical professional, you have to accept that tenant (and the cat). Thereafter, can you charge a pet deposit? The answer is no if the animal is a service animal or an emotional support (assistance animal).

A service animal under Colorado law can be a dog (or miniature horse) that is properly trained to assist persons with disabilities. These animals do work or perform tasks for the benefit of an individual with a disability that are directly related to the individual’s disability and needs. Examples might be a guide dog for a blind person, a dog that assists someone with epilepsy having seizures, or a dog that assists someone who is diabetic and going into shock. Assistance animals are animals that contribute to a person’s emotional support, well-being, comfort and companionship for disabilities and medical conditions like depression and anxiety. They do not have to be a dog. The person who is claiming the animal is necessary only needs to provide a letter from their medical professional advising that the animal is required because of a disability. While some people do make misrepresentations about their animals in order to violate covenants or lease provisions, it is not appropriate to ask what the disability is. What do you do in a situation where you want to make sure that any damage done by the animal will be taken care of upon the tenant’s departure? Rather than ask for a deposit specific to the pet, any damage would be covered under the tenant’s security deposit.

House Bill 16-1426 addresses animals and the growing concerns about the exploitation by people falsely putting vests on their dogs or presenting certificates claiming that their dogs are service animals in order to enter public places or gain accommodations. Federal and state laws require public places including parks, restaurants, theaters, stores, hospitals and more to allow any animal that is presented as a service animal or one in training.  Places sometimes face the dilemma about whether to inquire further to see if someone is misrepresenting the animal as a service animal and question whether it is even legal to ask any questions of the dog owner. You can ask if the dog (or miniature horse) is required because of a disability. You can ask what work or task the dog (or miniature horse) has been trained to perform.

The General Assembly found that the State of Colorado needed to enact a crime of intentional misrepresentation of a service animal for a person with a disability.  As of January 1, 2017, doctors, nurses and mental health professionals must meet with a person in person or by telemedicine, must be sufficiently familiar with the patient and the patient’s disability and legally and professionally qualified to make a determination about the patient’s need for an assistance animal before documenting the need for the patient’s assistance animal as a reasonable accommodation. The medical professional must make a written finding of the patient’s disability and how the disability is related to the need for an assistance animal. Medical professionals who fail to follow the new law can be found to have committed licensing violations. Any person who misrepresents the right to an assistance animal would also commit a class 2 petty offense. The House Bill further authorized the Colorado Civil Rights Division to educate the public regarding assistance animals and service animals and produce forms for landlords to use in the future concerning animals.

Note the law is evolving and this article cannot contain all important and up-to-date information on the topic, so please check with an attorney or the Colorado Civil Rights Division for further information.

Cinthia M. Manzano is a shareholder with Frascona, Joiner, Goodman and Greenstein, P.C. Her practice areas include Construction Defect, Construction, Special Needs Education Law, Real Estate, Litigation, and Association Law. Contact Cinthia Manzano.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

CINTHIA M. MANZANO