Emotional Support Animals & The Fair Housing Act


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The Big Picture On Emotional Support Animals And Fair Housing Law For Landlords:

    • Landlords must accommodate Emotional Support Animals (ESAs) under the Fair Housing Act, setting them apart from typical pets. ESAs differ from service animals because they do not require specialized training to assist individuals with disabilities.
    • Tenants with ESAs must provide medical certification through a letter from a licensed mental health professional. Landlords are also allowed to ask specific questions to verify the necessity of an ESA without discriminating unjustly, ensuring compliance with laws and the integrity of their property.
    • Landlords need to fully understand the scope and limitations of the Fair Housing Act when it comes to ESAs so that they can avoid hefty legal fees from potential lawsuits.

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emotional support animals under fair housing act for landlords

Pets cause more wear and tear on your property. They can be loud and messy and add friction with the neighbors. 

As a landlord, you can allow or prohibit pets from your rental units. Normally, this is a business decision: Do the pros of accepting pets outweigh the cons?  

However, tenants with certain types of support animals get additional rights under federal Fair Housing laws. Service animals, such as seeing-eye dogs, are a clear example. But what about emotional support animals (ESAs)? What are your rights and obligations under the Fair Housing Act?

The Limitations of No-Pets Policies

Landlords usually—and should—include pet policies in their leasing contracts. These include whether animals are allowed at all, how many animals, and any restrictions regarding the type of pet. 

For instance, as the landlord, you can allow dogs or cats but prohibit pet pigs. If the tenant violates the terms of the lease clause, you can file for eviction

It’s simple enough for the average tenant who sneaks in a pet wombat. But what if the tenant claims their pet is a service animal or an emotional support animal.

Difference Between a Service Animal and an Emotional Support Animal Under The Fair Housing Act

There may be some crossover between these two definitions in other people’s minds, so it’s better to be apparent where the differences lie. Let’s start with: 

Service Animals

A service animal provides tangible aid and true service to someone with a physical disability. 

As the ADA puts it,A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button.”

A common example of a service animal would be a guide dog for a blind individual. 

These animals—usually dogs—receive extensive training and are sometimes certified as service animals. However, as one reader pointed out, these certifications are not centralized or reviewed by any governing body and can be bought online for a few dollars.

Emotional Support Animals

Emotional support animals fall under a much broader, blurrier definition. An emotional support animal could be any animal that provides emotional or physical support to someone with a special need. 

These animals do not necessarily receive any training or have to be certified in any way. Additionally, they could theoretically be any species. An emotional support animal could be a dog or a cat, but it may also include birds, fish, rodents, pigs — you name it! 

Tenant Requirements For ESAs

First and foremost, you, as a landlord, need to see if the tenant has a valid letter from a healthcare professional that supports their need of an emotional support animal. The letter can come from any of the following: 

Healthcare Professional Role and Capability
Therapists Licensed mental health professionals, can issue ESA letters based on close client relationships.
Psychologists Focus on diagnosing mental health conditions, provide psychotherapy, can issue ESA letters.
Psychiatrists Diagnose and treat mental disorders, can prescribe medications and issue ESA letters.
Psychiatric Mental Health Nurses (PMHN) Specialized in psychiatric care, can diagnose, treat, and prescribe medication, authorized to write ESA letters.
Licensed Clinical Social Workers (LCSW) Offer treatment and resources for mental and substance abuse disorders, can write ESA letters if they diagnose a disorder.
Licensed Professional Counselors Focus on mental, behavioral, and emotional issues, qualified to write ESA letters.

Once you have a copy of the letter, do your due diligence and follow up with the healthcare professional to confirm.

However, you need to remember that the letter does not need to state the individual’s disability; it only needs to state that the healthcare professional believes an emotional support animal is necessary for their case. 

Fair Housing Act Section 504 & Emotional Support Animals

The Fair Housing Act was created to ensure equal housing opportunities for all tenants and homebuyers and to prevent discriminatory practices. This includes imposing different prices based on gender, religion, race, nationality, disabilities, or special needs. 

Due to the Federal Fair Housing Act, landlords are required to allow emotional support animals, which are considered appropriate accommodation for those with special needs. 

Appropriate or reasonable accommodations include simply allowing the tenant to keep the pet. However, this does not mean the landlord is financially responsible for any property modifications, such as the removal of a wall.

Questions to Ask When Screening Emotional Support Animals

Generally speaking, renters with emotional support animals get the same protections as physically disabled people with trained, certified service animals. 

Landlords do, however, have the right to ask questions of applicants with an emotional support animal. While you cannot deny a rental application because the applicant owns a support animal or tell a tenant that they cannot bring the animal into your rental property, you can ask these three questions prior to adjusting any lease clauses in your rental agreement.

1. Does the tenant have a disability?

As stated above, a physical or mental disability is included in Section 504 of the Rehabilitation Act of 1973.  It is described as an impairment that affects one’s life activities such as walking, self-care, hearing, or sight. Impairments include but are not limited to blindness, deafness, depression, or any deadly illness. 

As mentioned before, you can and should ask for legal documentation of a disability without necessarily requiring details. This reduces the subjectivity of a potential tenant’s need for an emotional support animal. 

2. Does the animal alleviate or assist with this disability?

In addition to legal documentation of the disability itself, the tenant should also provide medical confirmation that the animal does indeed assist with the physical or emotional impairment. 

If the tenant does not have legal or medical documentation describing their need for the animal, you have the right to deny their rental application or their pet. 

3. Is the request reasonable?

A request is considered reasonable if the tenant is not imposing a financial burden on the landlord. If the animal requires any housing construction or remodeling, this will cause financial stress on the landlord.

What You Can’t Require From Tenants With ESAs

As with service animals, tenants with ESAs have several protections that you, as the landlord, must respect, such as: 

Require ESAs To Go To Training

Just because a tenant has an emotional support animal doesn’t mean the rules don’t apply to them. The last thing you or the other tenants want is to hear an emotional support canary singing at 3 am. 

If the animal is or becomes disruptive at any time, you can SUGGEST training or behavior lessons before filing for eviction. The keyword here is suggest; you cannot require your tenant to get their ESAs to training. 

However, landlords can file for eviction if the animal continues to be disruptive or dangerous. What’s important here is, like always, to document everything you can so that, if worse comes to worse, you have proof that can support your eviction. 

Charging Additional Fees

No, as per the Fair Housing Act, landlords cannot charge additional fees for emotional support animals. Since emotional support animals are not considered pets, you cannot charge the tenant an additional pet fee, refundable pet deposit, or ongoing pet rent. 

However, if the animal causes any damage or harm to the property, you can deduct that amount from the initial security deposit. Ensure that the tenant is fully aware of their responsibility regarding damage done to the unit by the animal within the lease contract.

Deny A Tenant Due To Insurance Noncoverage For ESAs

Unfortunately, even if your insurance doesn’t cover emotional support animals, you cannot use it as grounds to reject a tenant. This falls within reasonable accommodations, but, again, you can always charge the tenant for any damages their ESA inflicts on your property. 

When Landlords Can Reject an Applicant with an ESA

Even though landlords are usually legally required to allow an emotional support animal, some circumstances allow for the rejection of the animal. Examples include:

  • Smaller multiunit (2-4 unit) buildings where one of the units is occupied by the owner (e.g. multifamily house hacking landlords).
  • Single-family homes rented without a real estate agent, by landlords owning three or fewer single-family rentals.
  • If the size of the animal is not compatible with the size of the property.
  • If the request becomes financially unreasonable for the landlord to make the accommodations for the emotional support animal.
  • If the animal is considered potentially dangerous to other tenants living in the same building or complex.
  • If the tenant does not meet all the typical tenant screening qualifications required before signing a lease agreement. Usually these would include credit, criminal, and eviction histories, income, rent payment history, and beyond. 

How to Handle Tenants Scamming Fair Housing Laws

In a perfect world, no one would abuse laws designed to protect the disabled. 

Unfortunately, there are plenty of renters who don’t suffer from a disability who take advantage of Fair Housing laws to game the system. Scamming websites offer fake certifications or documentation stating that the animal is a service animal when it is not. 

Don’t expect much in the way of legal protections against these scammers. If you ask the tenant screening questions outlined above and the tenant and animal meet the qualifications, you have little choice in the matter. You cannot reject their rental application because of the animal and must allow it to live in the unit at no extra charge. Otherwise, you face Fair Housing lawsuits over discrimination. 

Final Thoughts

As per the Fair Housing Act, landlords are legally required to allow emotional support animals or service animals. 

However, you are also protected by law if the request is unreasonable, the animal is disruptive, or the tenant is a scammer. Handle rental applications that include emotional support animals with kid gloves, knowing you risk a Fair Housing lawsuit if you overstep the line.♦ 

Do you allow pets in your rental properties? Have you ever run into trouble with emotional service animals? 

This article originally appeared on SparkRental and was syndicated by MediaFeed.

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