THE BLOG
10/31/2013 06:35 pm ET | Updated Jan 23, 2014

Can My Evil Landlord Evict Fido and Fluffy?

Many apartments and cooperative corporations have a "No Pets" policy. Your ability to circumvent this policy will depend upon the type of animal you have as well as the mood of the housing court judge on any given day.

We all know that guide dogs for visually impaired persons are generally exempt from any normal prohibitions on pets. They can't be refused entry, for example, to a swanky department store. Though, apparently, they might still be held for questioning if purchasing a Ferragamo belt at Barneys... Many landlords don't seem to realize though, that the law protects many types of animals beyond the traditional "seeing eye dog." On the federal level, Title VIII of the Civil Rights Act of 1968 (as amended in 1988) codifies the Fair Housing Act. This provides in relevant part that the owner or manager of an apartment complex (or coop)should waive the "no pets" policy for a physically challenged applicant with any type of service animal or support animal. Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

Furthermore, the housing provider may not require the applicant to pay a fee or a security deposit as a condition of allowing the applicant to keep the service animal. However, if the applicant's service animal causes damage to the applicant's unit or the common areas of the dwelling, the housing provider may charge the tenant for the cost of repairing the damage.

These protections seem to protect Fido, but what about Fluffy? Don't hate me cat lovers, but you have to agree that cats can't be readily trained to perform service functions. They can, however, help people dealing with psychological challenges. Your best hope of keeping a cat or non-service dog or other animal is to demonstrate that you have a "therapy pet." Your chances of success with this argument will vary. Last month a NYS Supreme Court Judge ruled that a tenant with psychiatric issues, could keep her pit bull -- even though the dog bit a neighbor! Try reconciling this decision with that of NYC Housing Court Judge Sabrina Kraus two weeks ago. Judge Kraus ruled that a tenant could not keep her pit bull despite her depression diagnosis. The only differences between the two cases was that the second tenant only had her dog for 90 days and was not officially diagnosed with depression until after eviction proceeding against her began. It may, therefore make sense to visit a therapist before the rescue shelter.

Going forward, it is clear that physical service animals are protected. Psychological therapy animals, however, may or may not be protected. Sort of reminds me of the parity fights against insurers who routinely refused to pay for their insured's psychological care claims. The Affordable Care Act would prohibit this discrimination as it relates to health care coverage. Should we also extend parity to therapy animals? Attention legislators: Who will stand up for Fluffy?

Ann Margaret Carrozza is a practicing attorney who also served as a New York State Assemblywoman. She is a regular legal contributor to TV and print media outlets. www.myelderlawattorney.com