BY MARK B. ZINMAN, ESQ. Mark B. Zinman is an attorney with Williams, Zinman & Parham P.C. He can be reached at 480-994-4732.
Recently, clients have contacted our office questioning whether they should include a question on their rental application asking if the applicant has an assistive animal. While having some appeal, clients recognized that there was a problem with this suggestion: a rental application should never ask an applicant if they have an assistive animal as this is no different than asking if they are disabled. It could be argued that just the inclusion of the question is a violation of the federal and state Fair Housing Acts.
A rental application is key in determining whether an applicant qualifies to live in your rental property. Therefore, every question you ask should be a factor in reaching this determination. Think of each question as a hurdle that the person must overcome and meet your standards, to be able to qualify to rent in your property. You would not create a hurdle that hinges on whether the person is disabled. You only want to ask questions that would qualify or disqualify an applicant: Do not ask any question that will not be used in qualifying the applicant.
There are numerous examples of this. For example, if you have an applicant standard that prohibits applicants from previously being evicted, it is logical to have a question asking, “Have you ever been evicted?” or “Has an eviction action ever been filed against you?” On the other hand, it is obvious that you would never ask if an applicant is disabled or if they need a wheelchair. While a landlord may know that a wheelchair will cause a lot of damage to carpet, it is improper to ask because it is not relevant in determining whether the person qualifies to live in the unit.
Similarly, while a landlord may be interested to know whether they will have to allow an assistive animal, it should not be relevant at the application stage because it does not relate to whether the person is qualified to rent the unit. It can only be assumed that the only reason a landlord would want to know this information on the application is because they are going to use that information to reject the tenant. The mere inclusion of this question may violate the Fair Housing Act and misunderstands assistive animals. By asking if they need an assistive animal, the landlord is implicitly asking whether the tenant is disabled. There is never justification for this, until the tenant asks the landlord for a reasonable accommodation and provides the requisite documentation. However, as an assistive animal is akin to a wheelchair, there is no legal reason this would need to be disclosed on an application. While some people have argued that they could use this question to show that a tenant lied on the application, this ignores the fact that in many instances the need for the assistive animal may not even arise until after the tenant moves into the unit. This principle should be used throughout the application. Every question on your rental application should be a factor in determining whether the person qualifies. If the question leads to discriminatory issues, don’t include the question in your application. Also, check with your attorney before changing such forms.
The views expressed here are generalized advice or information. Fact-specific questions should always be referred to legal counsel. Statements and opinions expressed in these legal columns are solely those of the author or authors. This advice does not necessarily represent the views or opinions of the Arizona Multihousing Association.