There's no question a landlord cannot deny a tenant of the right to have a service animal, which the Americans with Disabilities Act (ADA) defines as a dog that has been trained to perform a specific task for a person with a disability.
Some examples are as follows:
- A guide dog for a blind person.
- A hearing assist dog to alert deaf people when an alarm sounds or a doorbell rings.
- A dog that helps diabetes patients by alerting them when their blood sugar changes.
- A dog trained to turn on lights for people with PTSD.
Under the Fair Housing Act, landlords must allow a tenant to have a service animal and cannot charge a pet fee for that service animal.
There is also no question that landlords have the legal right to deny an animal that is a pet in a no-pet policy.
The gray area is the emotional support animal (ESA), which is different from both a pet and a service animal. An ESA provides emotional support for their owner, but ESAs are not necessarily trained to perform a specific task as a service animal is. ESAs can be part of a treatment plan for people with anxiety, depression, and loneliness, but because they are not service animals, according to the ADA, they are not covered by federal laws as service animals are.
So can a landlord or housing provider deny an emotional support animal? The short answer is "maybe; maybe not."
How reasonable accommodations comes into play
Under federal law -- the Fair Housing Act -- is a reasonable accommodation standard to give people with disabilities an opportunity to participate in many areas of life. Under reasonable accommodations for housing, landlords must allow service animals for people with disabilities, and emotional support animals, if legitimate, qualify.
It's easy to designate an animal an ESA
Because landlords need to follow landlord-tenant law, it's preferable to have clear-cut answers as to what's required of them. Emotional support animals fall into a gray area, so it can be a tough call for a landlord on what's expected and legal. Therefore, the best course of action is to treat ESAs as service animals, meaning landlords should allow a prospective tenant to have one and not charge extra pet rent or a pet fee for the privilege.
With that said, ESAs are not service animals. Not only that, not all ESAs are legitimate support animals either, even though their owners might claim they are. Some people scam the system to get around pet restrictions and/or fees by claiming their pet is an ESA when it really isn't. They often do this by registering their pet as an ESA when it's actually just a pet. This practice makes it tough for people who have a legitimate emotional support animal. In any case, landlords do have some rights here.
A practical guide on how to handle a tenant with an ESA
If you allow pets in your rental property and don't normally charge pet rent, a pet deposit, or a pet fee, you don't need to do anything differently if your tenant has an emotional support animal.
But if you don't allow pets (besides service animals) or if you allow pets but charge pet rent or a pet fee, you need a plan regarding how to handle emotional support animals. Here are some steps to take.
1. Find out about the animal
You are legally allowed to deny an ESA if that animal poses a threat to the safety of others. So if you discover an ESA bit or harmed someone before, you likely can deny that animal. Note that there needs to be a reason for the denial, not just because the animal is a pit bull or if your insurer either won't cover you or will increase your insurance if you allow a certain dog breed.
2. Ask for an ESA letter
While you can't ask people the nature of their disability, you can require proof the animal in question is really an ESA. Request the potential tenant provide you with a letter from a licensed mental health professional stating that the companion animal is necessary for this tenant's disability to help relieve symptoms. The letter should be on the official letterhead of a psychiatrist, psychologist, or licensed therapist. If the potential tenant can't provide you with this type of letter, then the so-called ESA is really just a pet, and your normal pet policy would apply.
3. Make sure the tenant is a responsible pet owner
You can put in the lease the requirements for keeping an animal of any kind. My lease, for example, states the following:
Pet waste must be picked up promptly and properly disposed of, and that owner keeps dog leashed at all times when outside and not in the fenced yard, and that pet does not become a nuisance to neighbors.
If the tenant violates this lease term, it is, like with any lease term that's violated, grounds for eviction.
4. You can use the security deposit
If an ESA causes damage to your property, you can deduct the cost to fix the damage from the security deposit. You would handle this as you normally handle security deposit deductions: If you withhold all or part of the security deposit, you must show an itemized list of the damages and receipts or estimates of the cost to fix the damage within the timeframe for your locale.
The bottom line
It's usually best to treat emotional support animals as service animals and allow them in your rental unit without charging extra for them. If you deny the request for an ESA, the tenant could have you investigated for discrimination.
If you're ever in doubt as to the correct course of action, it's always best to hire an attorney who specializes in landlord-tenant law.
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