Tenant forged ESA letter from doctor

[Justin Harrison]

In a nutshell, two tenants didn’t disclose a pet until confronted a month into tenancy, said they were finishing up paperwork to register it as an emotional support animal (ESA), and then sent in a forged signature from a local MD. This forgery was verified by contacting that doctor’s office directly (because tenant provided an incorrect number) and providing them with a copy of the document.

The fact that they didn’t tell us about the pet prior to signing and now have presented us with fake documents to avoid pet fees, we feel like we don’t want that type of tenant living in our property.

The catch that we want to be cautious of is ESA’s are protected by fair housing and even though this pet may be “registered” on a website, there is no licensed doctor or therapist backing it. What suggestions do you all have and what rights do I have at this point? If I had my choice, I’d ask them to leave because I don’t want to deal with this type of dishonesty but I don’t want to get hit with a discrimination law suit if we were to go that direction.

[Greg Scott]

I just recently posted detailed information on ESAs for landlords here https://www.biggerpockets.com/...  You have very little to worry about here unless you have a landlord-hating judge in your jurisdiction.

You should give them a notice that the information they provided was insufficient to be categorized as and ESA and that they need to start paying pet rent.  (DO NOT go into any detail on forged signatures, or any of that.  Keep that all to yourself.)  If you do not allow pets or it is a restricted breed, the letter should indicate they need to remove the animal within X days.  (something like 2 weeks)  If they do not, you simply file for eviction for a lease violation.  If they remove the animal before the time limit, you have no grounds for eviction.

I would not say anything at this time about non-renewing them. You can decide later as their lease is nearer the end.

[Nathan Gesner]

Quote from @Justin Harrison:

In a nutshell, two tenants didn’t disclose a pet until confronted a month into tenancy, said they were finishing up paperwork to register it as an emotional support animal (ESA), and then sent in a forged signature from a local MD. This forgery was verified by contacting that doctor’s office directly (because tenant provided an incorrect number) and providing them with a copy of the document.

The fact that they didn’t tell us about the pet prior to signing and now have presented us with fake documents to avoid pet fees, we feel like we don’t want that type of tenant living in our property.

The catch that we want to be cautious of is ESA’s are protected by fair housing and even though this pet may be “registered” on a website, there is no licensed doctor or therapist backing it. What suggestions do you all have and what rights do I have at this point? If I had my choice, I’d ask them to leave because I don’t want to deal with this type of dishonesty but I don’t want to get hit with a discrimination law suit if we were to go that direction.

At a minimum, you should follow Greg's advice and charge them pet rent dated back to the first day of occupancy. Give them 72 hours to pay that amount in full or terminate.

Personally, I don't like working with cheaters. If they're willing to forge a doctor's letter to avoid paying pet rent or to skirt your "no pet" policy, they're willing to do other things to violate the lease. I would give them a choice: pay the animal violation fee ($200 upon discovery, $50 per day until the animal is removed) and remove the animal forever, or terminate their lease within 14 days, refund their deposit, and find a new tenant that follows my rules.

[Justin Harrison]

Thank you for your advice both @Greg Scott and @Nathan Gesner. May I ask why you would keep the forgery information from the tenants? Also, what is an appropriate response when they ask why the information they provided wasn't sufficient to be categorized as an ESA?

So after I received the forged document and "screen shots" of the registration online (and before I wrote this post), I just responded saying thank you and that I would be charging them fees prior to the dog being registered so I charged them what my lease states of $10/day for unapproved pets in the house. It was only 3 weeks worth. They were accepting of that and even initially brought that up saying they were willing to pay any back fees.

One last twist: There are four tenants on the lease and I wouldn't mind allowing two of them to stay because they seem pretty honest, but the other two who were dishonest I would like to leave. They are all on one lease. If it came to terminating the lease, I would let the two tenants in good standing know that I would like to resign with them. Is there any problem I would run into there?

[Greg Scott]

When a resident applies to lease your unit, you should have already provided them your rental criteria.  If the credit check comes back at a 500, the correct response should be "You do not qualify. By law, the credit agencies should give you a free report to understand your score."  Other than their credit score, they should have easily known if they would qualify.  We've regularly seen forged W2s (which very easy to get on the internet) but by comparing the W2s to their bank statements it becomes clear the W2s were forgeries.  The more you talk about why they didn't qualify, the more you provide someone ammunition to be used against you.  If they know they provided you forged documents, and you just tell them they didn't qualify, they are likely to just walk away.  It probably wasn't the first time they had that happen!

Same goes for ESAs.  Your illegal pet owners already know they gave you forged documents, but they don't know what else you know.  Do you think they would dare take you to court if they know they forged the documents?  If you have solid proof, the judge will throw them out, potentially even throw them in jail for committing perjury.  

Also, the more you tell them, the more you are educating them on your process and educating them on what would be the "right" fake evidence to defeat your due diligence. You will get yourself backed into a corner where, short of hiring a private detective, you must accept the pet as an ESA due to great fake evidence. You are under no obligation to educate residents on HUD guidelines for accepting ESAs*. A true patient in need of an ESA will get proper advice from their medical professional.

*True story. We had one resident come in saying he couldn't afford pet fees but wanted a pet.  He started asking our staff what he needed to do to get a pet qualified as an ESA.  One of our staff started to explain until I gave her a look.  We later had a discussion that we don't educate on how to skirt the rules.

[Greg Henderson]

This isn't legal advice. Talk to a lawyer. My understanding is the ESA isn't protected by the ADA because it isn't job specific like a seeing eye dog. Its covered by the FHA. Is it a SFH? How many properties do you own? Are you managing yourself? If its SFH, under 3, and you self manage or if its 1-4 units and you occupy one unit, you are exempt from 42 3604 (minus section C) in Discrimination in the sale or rental of housing and other prohibited practices. I'd tell them to cure the lease or kick rocks.

(b)Exemptions

Nothing in section 3604 of this title (other than subsection (c)) shall apply to—

(1)any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided further, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 3604(c) of this title; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or

(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

https://www.law.cornell.edu/us...

[Greg Scott]

@Greg Henderson  Great point.  I didn't think to ask how many units.  With under 4, @Justin Harrison may be exempt.

[Justin Harrison]

@Greg Henderson and @Greg Scott, we have over four investment properties, three of which are single-family homes in the state of North Carolina. We do not personally occupy any units of our investments and we currently manage them ourselves.

[Justin Harrison]

Thank you all for your responses. We’ll put together a course of action and provide an update.

[Justin Harrison]

UPDATE: After having a conversation with our tenants about this, it was explained that the doctor's note that was thought to be forged was issued in 2017. I would think that the doctor's office would keep a record of these things so that still doesn't explain why they claimed it was forged. But anyway, that point seems mute now that the tenant's partner (also a tenant) got a signed doctor's note from her doctor to claim it as her ESA too. We called and verified that the letter was legitimate. So because of that, it seems that we are bound to allow the animal.

We ended up charging pet rent as per our lease ($10/day for unapproved animals) for the time the animal was in the house and they seemed accepting of that and have already paid. I hope everything will be fine from here-on-out and we'll assess whether we want to renew with them in the next year.