Emotional Support and Service Animals

Landlord: A prospective tenant refused to pay a pet deposit claiming her cat was an Emotional Support Animal. What's up with that?

Landlord: I have a no-pet policy that has been in place for years. Do I have to make an exception for my tenant who has just recently brought home a pit bull for Emotional Support?

First, A Few Useful Definitions

  • Service Animals - According to the Americans with Disabilities Act (ADA), service animals are dogs that must be specifically trained to assist disabled people.
     
  • Emotional Support Animal (ESA) - a companion animal, not limited to dogs, that provides therapeutic benefit to an individual with a disability. These animals are not required to have been trained to perform any particular service. An ESA is not considered a ‘Service Animal’.
     
  • Pets - legally, neither Service Dogs nor Emotional Support Animals are considered ‘pets’. Landlords are not required to accommodate even the most cherished pets.
     
  • Disability - a disability is defined by the ADA as "...a physical or mental impairment that substantially limits a major life activity.

Applicable Federal Laws

  • The Civil Rights Act of 1964 outlawed discrimination based on race, color, religion, sex, or national origin.
  • The Fair Housing Act (FHA) of 1968 forbade discrimination in housing based on race, color, gender, and/or national origin.
  • Section 504 of the Rehabilitation Act of 1973 states that no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under any program or activity that receives Federal financial assistance.
  • Federal Fair Housing Amendment Act (FHAA) of 1988 prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence.
  • Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Its overall purpose is to make American Society more accessible to people with disabilities. In 2008, the ADA Amendments Act (ADAAA) was passed. Its purpose is to broaden the definition of disability.
  • ADA - 4.15.2011 Clarification - “The rule defines “Service Animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. The rule states that other animals, whether wild or domestic, do not qualify as Service Animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for Emotional Support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use Service Animals that are trained to perform a specific task are protected by the ADA. . .”
  • HUD Guideline 4.25.2013 - states that “breed, size and weight limitations may not be applied to an assistance animal.” In other words, this ruling trumps any community, city, or county law that, in all other cases, would make possession of certain types of animals illegal.

Landlord Responsibilities

  • Make reasonable accommodations. For example, if you have a "no pets" policy you may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog in the residence. This is true for both Service Animals and Emotional Support Animals.
  • Allow reasonable access-related modifications to the private living space your tenant has rented. This does not necessarily require the landlord to pay for these changes.
  • Pet Deposits cannot be required for Service or, in many cases, for ES animals. Nor can there be any other fee or surcharge levied in exchange for Assistance Animals.
  • Damage by Service Animals. Landlords can charge tenants for any damages created by a Service Dog or an ESA.
  • Allergies and/or Fear of Animals are generally not legally valid reasons for denying a tenant requesting a pet policy waiver.
  • Verification. Landlords can require proof that a Service Animal or ESA is needed by the tenant, that the animal is fully vaccinated and free of parasites, though one cannot ask for proof that the Service Animal is trained. There isn’t any legal requirement for Service Animals to be always identifiable as such. Also, the tenant’s specific medical condition and/or medical history cannot be requested.
  • Eviction. If the tenant with disabilities does not follow the rules stated in the rental agreement, the landlord does still have the right to evict. Also, in regards to either service or emotional support animals, the tenant, regardless of disability, must be willing to: (1) clean up after their animal, (2) keep their animal from entering areas such as the pool or sauna, (3) keep their animal from disrupting or threatening or being a nuisance to other tenants, and (4) provide for the proper care of the animal’s health.
  • Exemptions to this law include: the landlord who rents three or fewer single-family homes without the use of a real estate agent or broker, and/or when the landlord occupies one of the units in a building with four or fewer apartments.
  • A housing provider may deny a request for an assistance animal where (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Tenant Responsibilities

  • Persons with Disabilities may request a waiver of a ‘no pets’ policy as a ‘reasonable accommodation’ under the law. This request should be in writing.
  • A Letter from a Licensed Medical Professional is required when requesting a waiver for an ‘Emotional Support Animal’, but the tenant does not need to disclose any details about the nature of their disability.
  • Supporting Documents that demonstrate the need for an ESA, must be provided.

Disclaimer: We are not legal experts. This article is intended only to encourage discussion on this ever changing topic. We strongly urge you to contact housing experts for up-to-date legal details applicable to your specific locality. We also solicit your comments and any appropriate clarifications on this topic.