Emotional Support Animals and Fair Housing
There are a lot of questions surrounding Emotional Support Animals (ESA), primarily because the law is not well designed, lacking in guidance, and widely abused. I hope this article will provide a small measure of clarification.
Have you heard about the person flying on a plane with their "support turkey"? A passenger claimed they were prescribed a turkey to help them deal with anxiety when flying. Seriously. Other animals include Pit Bulls, snakes, turtles, and even an alligator.
Abuse is rampant on the airlines and it's now becoming a problem in housing. When a tenant wants a pet but their Landlord won't allow it, they simply hop online and pay $100 for a certificate designating their pet as an "emotional support animal." The current laws seem (or lack thereof) tend to encourage fraud and give Landlords very few options. However, there are ways to protect yourself. Some states are pushing back and creating fines for anyone caught fraudulently presenting a pet as a service animal. In Wyoming, this can result in a fine of $750 per occurrence. I include that language on my paperwork to deter fraudsters. HUD Director, Ben Carson, announced this week that they will be cracking down on websites that sell phony documentation. Another way to protect yourself is to know the law, which is the purpose of this article.
As always, this is not legal advice and laws can change so please consult an attorney before developing your policies and procedures.
It's important to understand Americans with Disabilities Act (ADA) does not apply to residential housing. ADA is for public spaces like government buildings, businesses, and other facilities open to the general public. Support animal laws for residential housing are covered under Fair Housing. Fair Housing laws apply to most residential housing situations but there are exceptions. If you are unsure about whether Fair Housing applies to you and your rentals, click here to learn more.
We need to start by clearing up some confusion. Assistive animals are not pets and should be treated like any other medical / assistive device like a wheelchair or crutches. Assistive animals are prescribed to perform a specific service or task, alleviates symptoms of a disability, and helps the tenant enjoy their rental dwelling. It's important to understand the different types of assistive animals and how the law handles them:
Service Animal: these animals are highly trained to perform specific tasks for their handlers. They are regulated by ADA and permitted in public spaces but the are also protected under Fair Housing laws. An example would be a seeing-eye dog or a dog trained to alert the owner to a pending seizure.
Emotional Support Animal: These animals do not have any training or special qualifications. They are "prescribed" to alleviate symptoms that impact the person's ability to participate in daily activities. These animals are regulated by Fair Housing law but not ADA. An example would be a dog that provides companionship for someone suffering from PTSD.
Therapy Animal: Any animal trained to provide assistance to individuals other than their owner. These animals are common in hospitals, schools, or nursing homes. These animals do not qualify as an assistive animal under Fair Housing.
Working Animal: These animals are trained for specific jobs like search and rescue, law enforcement, or military. These animals are not protected under Fair Housing or ADA. Exceptions may be made when they are actively performing their job.
Now that we've clarified the different types of assistive animals, let's focus on the ESA and how Landlords should deal with them. Here are some common questions and answers:
Q: How do I know if it's really an ESA or just a pet?
A: There are two things a Landlord can do to verify the animal is a legitimate service animal. First, if the disability is obvious (individual is blind) then you are not allowed to ask for documentation. If the disability is not obvious, then you can ask them to provide documentation of the disability from a medical provider. You don't have the right to know the details of the disability; only that they are disabled.
Second, you have the right to verify the animal provides a service, task, or alleviates a symptom of a disability. For an ESA, no special license, certification, or training of the animal is required.
Third, you have the right to question whether the request for an ESA in the home is reasonable. This is situation dependent. There are no restrictions to the type of animal designated as an ESA so you can't deny someone just because they have a miniature horse. However, it is completely unreasonable to put a miniature horse in an third-floor apartment so that type of request could be denied even if the animal is legally prescribed.
Q: Can I require the tenant to provide current documentation of the disability?
A: Unfortunately, HUD doesn't require the documentation to be "current" or for the prescribing individual to meet certain qualifications. If the tenant has a letter from a family counselor that is four years old, you will have to decide whether to accept it or not.
Q: Can I require the tenant to use my forms to verify the medical need?
A: Yes. I recommend you develop forms to ensure everyone is treated equally. Your local HUD office should be able to assist you with this. I provide them with three things:
- Assistive Animal Policy. This explains our office policy to ensure everyone understands their rights, responsibilities, and that the will be treated fairly and honestly by our company.
- Request For Reasonable Accommodation. This is a form that allows them to detail what they are requesting. This could be a waiver of our no-pet policy or installation of wider doors to accommodate a wheelchair. It lets us know exactly what they are asking for and why.
- Proof of disability. I provide them with a sample letter that their medical provider can copy onto their letterhead and return to us as verification of a disability. If the medical provider has their own letter that meets our requirements, I accept it.
Q: Can I ask an applicant if they have an assistive animal?
A: Yes. You should ask this on the application and you should notify all applicants that assistive animals require additional documentation.
Q: Can I require the tenant to agree to additional terms regarding their service animal?
A: Yes. You can require tenants with assistive animals to follow the same rules you would require for any animal. This includes keeping the animal under control and/or leashed, not allowing it to disturb neighbors, picking up after it, etc. If the tenant fails to meet these basic standards of care, it can be a breach violation and result in fines, removal of the animal, or possibly eviction.
Q: My tenant has four assistive cats. Do I have to allow multiple animals?
A: Fair Housing doesn't really address this but it is clearly addressed by the ADA so it's safe to apply as a general rule. Individual animals are prescribed for individual disabilities. If the tenant is prescribed a cat for anxiety, they can have one animal for that disability. Likewise, a blind man is prescribed one guide dog, not multiple. The exception would be someone with multiple disabilities. They may have a guide dog for blindness and a second dog that alerts them to pending seizures.
Q: My Tenant has an emotional support animal. Since I'm already allowing that animal in the home, do I have to allow other animals that are not prescribed?
A: No. You are only required to make a "reasonable accommodation" for the prescribed animal. You do not have to accept pets. You can also continue to restrict visitors from bringing animals to the property for short periods of time.
Q: Can I regulate the size or breed of assistive animal?
A: No. Assistive animals may be cats, dogs, birds, reptiles, miniature horses, or even turkeys. The only exception I can think of is if the tenant has an animal that is considered dangerous (e.g. Pit Bull) and that may cause the Landlord to lose their insurance coverage. In this case you should notify the insurance carrier and determine if they will provide coverage. If they deny your request, you can use the denial as a justifiable reason for denying the animal.
Q: Can I restrict the species?
A: Not necessarily. The law allows tenants to use just about anything as an assistive animal, to include cats, fish, turtles, miniature horses, and even turkeys! However, the species may be considered an unreasonable request. For example, a miniature horse in an upstairs apartment would not be reasonable. Some animals are untrainable (e.g. a crocodile) and couldn't possibly be domesticated or provide any specific service or task.
Q: My tenant has a trained search-and-rescue dog. Do I have to allow it?
A: No. This animal is considered a working animal and is only provided special protections when performing its job. It is not protected by Fair Housing or ADA when not performing.
Q: My tenant trains service animals and therapy dogs. Do I have to allow them?
A: No. Fair Housing does not protect a business or animals trained for the benefit of others. If the animal is not specifically prescribed to your tenant's disability then it is not allowed.
Q: Do have to allow an assistive animal that behaves badly?
A: No. Assistive animals must be kept under control, cleaned up after, not allowed to damage the property or disturb neighbors. If the tenant cannot control the animal or they fail to clean up after it, you can notify them of the violation, require them to remove the animal from the property, or even evict them.
Q: Can I require assistive animals be vaccinated, spayed, or neutered?
A: Yes. Individuals who have service animals are not exempt from local animal control or public health requirements.
Q: Can the Municipality or Homeowner's Association ban certain breeds?
A: No. Local jurisdictions should determine on a case-by-case basis whether the particular service animal can be excluded based on that animals actual behavior or history. They cannot exclude animals based on generalizations about how a particular animal might behave.
Q: I approved a tenant with an assistive dog and they moved into an apartment complex with a "No Pets" policy. Now my other tenants are asking if dogs are allowed. How can I explain this to them without violating privacy issues?
A: Privacy laws don't allow you to share a tenant's information with others. All you can say is, "I'm sorry but I am unable to discuss another tenant's private information with you."
Q: A tenant applied to rent a property that doesn't allow pets. On their application they state they have no pets and no assistive animals. I later learn they moved in with a dog so I served them with a lease violation. The next day they walked in with a doctor's note and claim it to be an assistive animal. What can I do?
A: If their application said they have no pets and no assistive animals then you can evict them for falsifying their application. If your application does not ask about pets or assistive animals then you should probably consult an attorney before taking action. The law requires the tenant to request "reasonable accommodation" before placing the animal in the property. The law does not allow the tenant to install 36" doors or grab bars in the shower without Landlord permission and the same is true of support animals. The tenant must request it and receive permission first.
Q: Tenant has lived in the property for six months. I discovered they have a dog in the home so I served them with a violation notice. They walked into the office two days later with a doctor's note claiming it is an assistive animal. Do I have to allow it?
A: If your lease requires tenants to obtain prior written notice before adding a pet or assistive animal, then the tenant is in violation of the lease. However, this is a "curable" violation meaning the tenant can correct it by filing the proper paperwork. I recommend you allow the tenant to fill out the appropriate paperwork and make a request for a reasonable accommodation, just like you would with a new applicant.
WHERE DO I LEARN MORE?
Whether you are renting, buying, selling, or investing,
contact Nathan Gesner at (307) 587-9608
American West Realty and Management
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