An Emotional Support Peacock—Really?! How to Navigate the Murky Waters of ESAs as a Landlord
In my last article, I wrote about pet policies for landlords, specifically relating to certain dog breeds that can be classified as dangerous, such as pitbull-type dogs. While I see many positives to accepting tenants with pets, I made the case that certain dogs are probably just too risky. A lively discussion ensued that I enjoyed very much. I hope to continue these conversations.
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I mentioned the issue of emotional support animals (ESAs) being a game-changer for your pet policy, and in need of a whole other article. Here is that article.
ESAs vs. Service Animals
First of all, emotional support animals are not service animals, like seeing eye dogs. Service animals are specially trained to do specific tasks that aid a person with disabilities or health problems. ESAs are just companion animals that alleviate mental or emotional conditions, but they have similar legal protections in the arenas of housing and travel. ESAs are not necessarily trained to do (or not do) anything.
This article is not talking about seeing eye dogs. I am strictly discussing emotional support dogs, cats, llamas, ferrets, pigs, ducks, donkeys etc.
The regulations around ESAs, as they are interpreted by case law today, provide many incentives for pet owners to get their pet officially declared an emotional support animal. Once that animal has the required documentation, which is ridiculously easy to get, it is no longer legally classified as a pet, but a medical device, like a wheelchair.
Just as the Americans with Disabilities Act (ADA) states you must make “reasonable accommodations” for wheelchairs, the Fair Housing Act (FHA) states that you must make reasonable accommodations for emotional support squirrels—regardless of your pet policies.
Your “No Pets Policy” Just Got Voided—Possibly
Not only must you allow an ESA, but you cannot charge an additional pet deposit—or pet rent—for the animal(s). 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 ESA avoids your standard pet rents and pet deposits.
The incentives for the ESA designation do not end with housing. There are enticing travel benefits for ESAs. They must be allowed to travel with their humans—free of additional charge. Yes, people are traveling with their pitbulls and, yes, those ESA pitbulls are attacking other passengers and, yes, those passengers are suing the airlines.
I am certain lawsuits or new laws will clarify or change the status of ESA regulations so stay tuned. There are too many abusers and too much outrage for things to stand as they are much longer.
But what do you, as a landlord, need to know to protect your business under the status quo? Here are some dos and don’ts to keep in mind so that other landlords are the ones sorting this out in court and not you.
1. DON’T Revoke a Tenant’s Approval When They Reveal That They Have an ESA
A savvy applicant will not reveal this upfront. They are not required to. Be prepared for any applicant you approve to hit you with this little surprise after approval. Rescinding an approval at that point and for that reason is just inviting a lawsuit that any attorney would love to take, so don’t do it—unless your situation falls under one of the following exceptions. And please, consult an attorney before you do.
Exceptions to the FHA regulations on ESAs:
1. Animal is too large for the property, such as a horse or alpaca
2. Property has four or fewer units and the landlord occupies one of the units
3. Single family homes rented without an agent
2. DO Ask to See Their ESA Letter
A qualified 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. If they do not have this letter, then it is just a pet. You do not get to judge the resume of that professional or pick a different professional. If it is valid, you must accept it.
3. DO NOT Ask Any Follow-Up Questions about the Tenant’s Mental Health
That would be a violation of HIPAA and FHA regulations. Also, it’s none of your business. Don’t do it. They will sue you.
4. DO Discuss and Provide “Reasonable Accommodation” for the Animal
Don’t be a jerk. Many of these situations are legitimate. Any pet owner will tell you that their animals do provide loving companionship and contribute to positive mental health. A healthier tenant is a happier tenant, so in all sincerity, do what you reasonably can to accommodate these animals. For example, you could designate a pet relief area and provide doggy bags for cleanup.
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.
5. DO NOT Charge a Pet Deposit or Pet Rent for an ESA
These must be waived, however, if it is your current policy to charge tenants for damage beyond reasonable wear and tear, you can also charge your tenants for damage beyond reasonable wear and tear that their emotional support duck has wrought.
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.
6. DO Ask to See Veterinary Records
ESAs can be required to be up to date on vaccines and to receive regular veterinary care.
7. DO be on the Lookout for Signs of Neglect or Animal Abuse
As you would with any animal on the property, pay attention and record any signs or reports of abuse or neglect. ESAs are not exempt from animal cruelty laws, which are a criminal matter. If you become aware of anything like this on your property, you should take appropriate action. You are also within your rights to address bad behavior, such as excess noise or aggression. Certainly if the animal attacks someone, you should get it off your property immediately. All bets are off at that point.
8. DO Understand That You May be Able to Deny a Wild, Exotic, or Farm Animal
Remember the famous emotional support peacock? If you can make a case that the proposed emotional support tiger would pose a threat to others or could not be accommodated on the property within reason, you might have a case to deny the tenant. 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!
Fake Service Animals Are Suddenly Everywhere
It is incredibly easy to turn a pet into a legally recognized emotional support hamster, and there is a lot of incentive to do so. A quick web search reveals several sites dedicated to this process. Nearly anyone who has felt “sad” in the last two weeks can qualify, pay around $100 and get a letter in their hands within 24 hours. Landlords are going to be faced with this issue eventually—if they haven’t already.
I predict major changes in ESA regulations soon, but in the meantime, landlords need to understand and follow the law as it stands to avoid being sued by a peacock.
Note: None of this constitutes legal advice! I am simply discussing this increasingly impactful issue and its effect on landlords! Always discuss with a knowledgeable attorney familiar with your local regulations.
Have you encountered any strange service animals? Or do you have any pets-in-rentals horror stories?