Emotional Support Animals & Waiver of “No Pet” Policies: What Does the Law Say?
[Editor’s Note: Please be aware that this material does not serve as legal advice. As with all blog content discussing landlord-tenant legalities, be sure to consult Federal and State laws specific to your area before implementing any of this advice into your practices.]
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“My tenant just got a dog and is claiming it as an emotional support animal, but I have a ‘No Pets’ policy.”
“A prospective tenant says they have an emotional support animal, but I don’t allow pets. What do I do?”
I see these questions popping up in the Forums from time to time, and I got curious about the law.
The Fair Housing Act was adopted in 1968, and among other things, makes it illegal to discriminate against people based on race, color, religion or country of origin. It was added in 1974 that you couldn’t discriminate based on gender, and since 1988, you also cannot discriminate against people with disabilities or families.
There are very few properties that are exempt from these laws â a building with 4 or fewer units, one of which is owner occupied; single family homes where the owner does not use a real estate agent to buy or rent the property, and the owner owns less than three single family houses; and housing owned by organizations or private clubs that is used for members.
BiggerPockets readers are a smart bunch, so I am going to skip over everything else on the list and focus on disabilities. In addition to not being able to discriminate, housing providers must make reasonable accommodations to their rules, policies, practices or services, and must allow the tenant to make changes to the property at the tenant’s own expense, provided they return the property to its original condition prior to vacating the premises, also at the tenant’s expense.
So let’s take a look at a hypothetical situation. You have a 3-story building with stairs leading to the front door. The tenant wants you to allow them to build a ramp so they can get into the building. This is a reasonable request. The tenant wants you to install an elevator so they can live on the third floor. This is not a reasonable request.
But what about animals in a “No Pets” building?
A service animal is not considered a pet. It is an assistive device to help with a disability, similar to the way a wheelchair gives assistance. Since a service animal is not a pet, a housing provider cannot charge a pet deposit or additional pet rent. You may, however, refuse an animal that poses a direct threat to the health or safety of others, but you must be able to prove that the specific animal is a threat — general assumptions based on breed or size are not allowed.
Breed, size, and weight limitations also do not apply to service animals, with one caveat. The law states that “reasonable” accommodation requests are only reasonable if the request can be easily granted — that is, if the request won’t cost the housing provider an excessive amount of money or time. A 2006 HUD memo states that “if a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider.”
Proof of Need
What you can do as a housing provider is request proof of need. A true emotional support animal has been prescribed by a physician or therapist, who will be happy to provide a letter stating such. You have the right to request documentation, and you should request it to prove that you aren’t discriminating against other tenants who want pets. But keep in mind that while you are entitled to documentation, the tenant’s animal is not required to be trained or have any special certification. And the documentation you request can only be related to proof that the animal has been prescribed. You may not request information about the nature of the disability, nor can you request medical records or access to medical personnel.
But wait, there’s more. You may only request proof of need for a disability that is not apparent. You may not request proof of need for a blind person’s seeing eye dog, or any other similarly obvious need.
I don’t think this is the reason for the multitude of questions in the Forums, however. I can see that there are legitimate reasons to have an emotional support animal. I can also see people exploiting the existence of emotional support animals to circumvent the “No Pets” policy in place in a building.
The advice I see over and over in the Forums regarding most anything is “document document document.” Keep good records, and document everything. So if you have a tenant who “suddenly” gets an “emotional support animal,” document the first time you noticed it. When you ask them about the animal and they claim medical need, ask for a letter from their prescribing physician. Document when you asked for it, and when you received it. It shouldn’t take more than a few days to receive, especially if it is a legitimate need. If it goes beyond a week, document that as well.
A true emotional support animal has been prescribed by a physician, and a letter should be easy to provide. Someone scamming the system is not covered by law, but you shouldn’t automatically assume that someone is trying to pull one over on you just because the animal appears suddenly. Put aside emotions, speak calmly, and ask for documentation.
Another piece of advice I see time and again in the Forums is to consult an attorney. An ounce of prevention is worth a pound of cure, and wouldn’t you rather spend the few hundred dollars on the attorney than the few (or many in some cases) thousands of dollars in fines because you misinterpreted the law?
[We are republishing this article to help out landlords who have found BiggerPockets more recently.]
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