If you have a no-pet policy, you probably won’t be surprised to learn that doesn’t apply to service dogs—but you might be shocked when realizing that emotional support animal laws supersede your policy, too.
That’s because an emotional support animal is not considered a pet. Like a service dog, it is an assistive device to help with a disability, similar to the way a wheelchair provides assistance. Since a service animal is not a pet, a housing provider cannot charge a pet deposit or additional pet rent.
(What’s the legal basis? Look to the Fair Housing Act, or FHA, which was adopted in 1968. Later, in 1988, lawmakers modified federal law to prevent discrimination against families or people with disabilities.)
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.
When can a landlord legally reject an ESA?
There are very few properties that are exempt from these laws:
- A building with four 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, assuming the owner owns less than three single-family houses
- Housing owned by organizations or private clubs that is used for members.
Your insurance policy may also give you an out. “Reasonable” accommodation requests are only reasonable if the request can be easily granted—that is, if they won’t cost you an excessive amount of money or time. A 2006 Department of Housing and Urban Development (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 certain breeds of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider.”
ESAs vs. service animals
First of all, emotional support animals are not identical to a service animal for a disabled person, like a guide dog. Assistance animals, like seeing-eye dogs, are specially trained to do specific tasks that aid a person with health problems or emotional disabilities, like post-traumatic stress disorder or any other mental impairments. ESAs are companion animals that alleviate mental or emotional conditions and must be prescribed by a mental health professional or physician.
They aren’t necessarily trained to do anything. However, they do have similar legal protections.
Just as the Americans with Disabilities Act (ADA) states you must make “reasonable accommodations” for wheelchairs, the FHA states that you must make reasonable accommodations for emotional support squirrels—regardless of your pet policies. That can be hard for today’s landlords, because the internet makes it astonishingly easy to register any pet as an emotional support animal—even if you don’t have a diagnosed mental illness.
Your “no pets” policy just got voided—possibly
Not only must you allow an ESA, but you cannot charge additional pet fees. Again, they are a medical device now.
Could you charge extra rent or deposit for a wheelchair? No, you couldn’t.
So even if you allow pets, a tenant with an emotional support dog or miniature horse avoids your standard pet rents and deposits.
Know your emotional support animal laws
How can you protect your real estate business under the emotional support animal status quo? Here are some dos and don’ts.
Don’t revoke a tenant’s approval
A savvy applicant will not reveal this up front. They are not required to. Be prepared for any applicant to hit you with this post-approval surprise. Rescinding an approval at that point, for that reason, invites a lawsuit. Don’t do it. And please, consult an attorney before you do.
Do ask for their ESA letter
An emotional support animal must have a letter from a qualified medical or psychiatric professional stating that the animal alleviates symptoms of an emotional or mental disability. However, if they do not have this letter, then it is just a pet.
Keep in mind that you can’t judge the resume of that professional or insist they pick a different professional. If it is valid, you must accept it.
Don’t ask mental health follow-up questions
Frankly, it’s none of your business. And legally? Asking these questions can leave you toeing the line of the emotional support animal laws. Don’t do it. You’re risking a lawsuit.
Do provide ‘reasonable accommodations’ for the animal
Don’t be a jerk. Many emotional support animal situations are legitimate. (And any pet owner can tell you that animals provide loving companionship and contribute to positive mental health.) This means that a healthier tenant is a happier tenant, so do what you can to accommodate these animals.
For example, you could designate a pet relief area and provide doggy bags.
You have the right to require the tenant to clean up after their animal. Your other tenants and neighbors still have the right to a sanitary and safe environment and quiet enjoyment of the property. If the emotional support aardvark is interfering with that, you can evict.
Do not charge a pet deposit or pet rent
Emotional support animal laws dictate that these fees must be waived for ESA owners. However, if you currently charge tenants for damage beyond reasonable wear and tear, you can also charge your tenants for damage from their emotional support duck.
In fact, you might clarify in writing specifically that any damage done by the animal or human that is beyond reasonable wear and tear can and will be deducted from their normal standard deposit or charged to them some other way. The ESA letter is not a license for their emotional support pony to tear up your property.
Do ask to see veterinary records
You can require that ESAs are up-to-date on vaccines and to receive regular veterinary care.
Do be on the lookout for signs of neglect or animal abuse
Therapy animals are not exempt from animal cruelty laws, which are a criminal matter. So if you see anything like this, take appropriate action. In addition, you are within your rights to address bad behavior, such as noise or aggression. Certainly if the animal attacks someone, you should get it off your property immediately. All bets are off at that point.
Do understand that you may be able to deny wild or farm animals
Remember the famous emotional support peacock? If the proposed animal poses a threat or can’t be reasonably accommodated, you might have a case for denial. But you would probably have a battle on your hands if you tried to deny an emotional support mini horse or monkey. Consult an attorney if in doubt.
The law won’t cover someone scamming the system, but don’t assume that renters are scammers. Put aside emotions, speak calmly, and ask for documentation. And remember: An ounce of prevention is worth a pound of cure.
Wouldn’t you rather spend a few hundred dollars on an attorney than the few—or many, in some cases—thousands of dollars in fines because you misinterpreted the law? Local laws can vary, too. Better safe than sorry.
Have you encountered any strange service animals? Or do you have any pets-in-rentals horror stories?