Emotional Support Animal - No Notice, not on Application

23 Replies

Just a slight twist on the emotional support animal (ESA) question. I'm aware that I can't turn anyone down or charge a pet fee for an ESA. But what can or should I do if a tenant just moves in a ESA without telling me or mentioning it in the application? I think the answer might be 'just accept it and move on'.

Specifically here, I have a question on my application "What type(s) of animals do you have?" which the applicant indicated none. Now, less than a month after they moved in I found a cat on the property when I was making some minor repairs the tenant had requested. I told the tenant I would have to enforce the lease but gave her a couple options. She emailed me a few days later saying the cat is an ESA with a letter from a therapist. In this case I've already decided to accept it and move on, but I'm curious what everyone else's thoughts are. I suppose eviction for lying on the application is a potential response, but I don't see that going very well for the landlord in court.

I don't think you can evict, and I don't think you can charge a "pet fee" or anything for a ESA with letter from therapist.  I think you are right, you just have to accept it and move on.  I would perhaps not renew the lease though.

Increase the security deposit.

@Laurence V. - is the letter from the therapist a local therapist, or some web based ESA letter? I just had this happen to me (but with a letter from a web based company) and wound up evicting (but they were 2 large pitbull ESAs LOL!

It is from a local therapist. It's just a cat and I am pet friendly (within reason). In this case, I'm more annoyed that I feel the tenant was dishonest in the application. This person has been a little more needy than other tenants, but nothing crazy. I'm going to agree with @Russ Draper and take a hard look at whether or not we renew the lease. Though there's 11 months left at this point, so a lot can happen.

I would call her bluff, call the therapist and confirm the letter is legit, you have every right to @Laurence V.

@Ryan Murdock , so you're telling me that I may potentially have to allow some sad person to have a pet in my property without any recourse for damages that pet may cause? AND i can't say "no pets"?

If she has a valid letter from a therapist that states she is disabled and the ESA is needed for the disability, then you must allow it and cannot charge any extra fees.  If the letter does not state she is disabled, then you can  require she submit a statement that she is disabled and requires the ESA for her disability.  As far as limiting her lease term, I dislike turnovers, so if she is already there and that is the only point of contention, I would not rock the boat.  She will be responsible for any damage caused by the animal, whether one year or three.  I've increased my required deposits overall closer to state allowed maximums to protect myself from these "surprise" situations that are happening more frequently as apparently anybody can write a letter these days.  When applicants ask why my deposit is higher than one month's rent, I tell them it's because I've had too many issues where tenants think security deposit is last month's rent, and it is not, and they seem to accept that.    

This post has been removed.

Originally posted by @Ray Harrell :

@Ryan Murdock, so you're telling me that I may potentially have to allow some sad person to have a pet in my property without any recourse for damages that pet may cause? AND i can't say "no pets"?

You can say "no pets" and charge and extra deposits for "pets" but ESA's are not considered "pets" and therefore exempt.

That's just the tip of the iceberg.

Do a quick search here on BP and you'll find a million or so discussions on it. It's one of the most frustrating elements of landlording these days.

@Lynn M. You echo my thoughts exactly. Unfortunately, Ohio (where I live and invest) requires interest be paid to the tenant on security deposits in excess of 1 month's rent. It's not terrible in terms of cost of money, but I've avoided it because of the logistical nightmare of having to keep track of interest owed to all of my tenants would be. I only have 5 units now, so it wouldn't be too bad, but as I scale up it would quickly become cumbersome.

@Ryan Murdock , so you're telling me that I may potentially have to allow some sad person to have a pet in my property without any recourse for damages that pet may cause? AND i can't say "no pets"?

Negative, you may be required to have someone with a ESA/Glasses/a Wheelchair/Seeing Eye Dog/4 day a week nurse etc. Any and all damage to the property caused by ESA/Glasses/Wheelchair/Seeing Eye Dog/4 day a week nurse needs to be identified during inspections and charged to the tenant. Yes a tenant can have a nurse come in but if the nurse kicks a door down, you are not responsible for repair, the tenant is. Some landlords would notice the bedroom door on quarterly inspection and get a handyman over there to fix it within a week and charge the tenant at that time. Same with a chewed up baseboard or ripped up carpet.

Yes you cannot be discriminated against because you require assistance (and should not be), but you are responsible if the sun catches your glasses just right and burns a hole in the drywall.

Good Luck.

EDIT: It is not a pet, it is an ESA. So calling it a pet is not going to get you anywhere. It is an item to assist in overcoming a limitation.

Mike Cumbie, Real Estate Agent in NY (#10401285310)

This might be a little specific to Franklin County (Columbus Ohio) but may help clear up what you can and can't do.

https://fclawlib.libguides.com/ohiolandlordtenantl...

That said, I'd ask my attorney if lying on the application (even if for an ESA) is grounds for lease termination. I have it as one of the clauses in my own lease. I hate liars. 

My 2nd question in my for rent ad is 'how many animals?' I probably ask again on the app.

If they weren't truthful, I have grounds for action.  Liars and truth hiders are not yet a protected class.

Phrase your questions correctly. Do not ask if they have a pet. Ask how many animals.

Originally posted by @Steve Vaughan :

My 2nd question in my for rent ad is 'how many animals?' I probably ask again on the app.

If they weren't truthful, I have grounds for action.  Liars and truth hiders are not yet a protected class.

Phrase your questions correctly. Do not ask if they have a pet. Ask how many animals.

I love this but I'd be curious to see it tested in court. Just for the sake of argument, could it be implied as discriminatory?  I doubt I could ask how many wheelchairs a person has.

I would definatly follow up and check out her therapist. The reality is that this is not a emotional support animal your tennat is lying but she has found some unscrupulous therapist that could care less.

If you had a M2M lease you would have far more flexibility. I would not push the issue and simply non renew at the end of her lease. You do not want to make a big deal after checking out the therapist if he insists it is a support animal. This way you can ligitimatly non renew without appearing to violate the BS regulations.  

With the untruthful, I'd be happy to take it that far and find out.

Nobody listens to me anyway, Ryan.  They still have pet policies, pet deposits, maybe even pet rent.  I'll just stay out of these discussions if it's the same as asking  number of wheelchairs....

@Steve Vaughan @Nicky Reader What you suggest is really what I was asking about here. I do have a question on the application explicitly asking about animals, not 'pets'. (I did cleared it with my lawyer before anyone asks.) Lease does state that any falsehoods on application discovered later are grounds for lease termination. I'm not willing to push it that far in this case, but I believe I would be within my rights to. Whether a judge would side with me over it might be another issue though.

@Laurence V.   I would definitely double check with the therapist that they did in fact order this pet as a therapy animal.  While you cannot inquire about the REASON they need the animal, you can absolutely make sure they are not lying to you that it has been prescribed.

And while you cannot charge extra rent or deposit for the animal to be there, you can absolutely hold the owner liable for any damages the animal does. I would make sure you have move-in documentation of the condition of the home -  especially the carpet and lower drywall. 

I would also be frustrated by the obvious lie. 

Mindy Jensen, Real Estate Agent in CO (#FA100049656)

One question I would ask myself is "Which came first: the 'ESA' or the letter?"

It's a legitimate question of timing....

Lets' pretend you first saw the cat at the property on March 1st, and the letter head from the therapists office is date March 15th..  It would be clear then that the resident had a "pet" at one point, even if it is now an ESA, and thereby violated the lease agreement and used the letter is a bogus attempt to cover up a pet after the fact.  That's what I'd argue in court if it came to it.  I'm not a lawyer or a judge, though.

As others have said, probably not worth fighting it because the laws are still somewhat vague and have not been thoroughly scrutinized and fleshed out via court cases.  I'm a generous guy, but I don't feel obligated to spend money on an attorney defending myself to be the test case for whether this approach will or won't work.  Let the big boy mega-plex apartment owners chip in on a few lawsuits and get us some case law directives we can apply.  (wink)

Meanwhile, I think monthly inspections to check for damages are in order.  LLs are not required to keep animals (ESAs, service dogs, pets, etc) if they are destructive.  You can and should find, repair, bill for, and evict over damages that are not paid promptly.

Good news is airlines are starting to press for more stringent regulations to curb abuse of ESAs and other questionable service animals.  Hopefully some of their precedents will spill over into housing accommodations.

Originally posted by @Erik Whiting :

One question I would ask myself is "Which came first: the 'ESA' or the letter?"

It's a legitimate question of timing....

Lets' pretend you first saw the cat at the property on March 1st, and the letter head from the therapists office is date March 15th..  It would be clear then that the resident had a "pet" at one point, even if it is now an ESA, and thereby violated the lease agreement and used the letter is a bogus attempt to cover up a pet after the fact.  That's what I'd argue in court if it came to it.  I'm not a lawyer or a judge, though.

As others have said, probably not worth fighting it because the laws are still somewhat vague and have not been thoroughly scrutinized and fleshed out via court cases.  I'm a generous guy, but I don't feel obligated to spend money on an attorney defending myself to be the test case for whether this approach will or won't work.  Let the big boy mega-plex apartment owners chip in on a few lawsuits and get us some case law directives we can apply.  (wink)

Meanwhile, I think monthly inspections to check for damages are in order.  LLs are not required to keep animals (ESAs, service dogs, pets, etc) if they are destructive.  You can and should find, repair, bill for, and evict over damages that are not paid promptly.

Good news is airlines are starting to press for more stringent regulations to curb abuse of ESAs and other questionable service animals.  Hopefully some of their precedents will spill over into housing accommodations.

Along the airlines getting stricter... WA just passed a bill making it a civil offense, punishable with a $500 fine for basically falsifying that an animal is a service animal of some sort when it is not.  One of the bluest states around is cracking down!  It's effective 1/1/19 I think.  Should help us and more importantly, help protect the truly disabled.

Originally posted by @Erik Whiting :

One question I would ask myself is "Which came first: the 'ESA' or the letter?"

It's a legitimate question of timing....

Lets' pretend you first saw the cat at the property on March 1st, and the letter head from the therapists office is date March 15th..  It would be clear then that the resident had a "pet" at one point, even if it is now an ESA, and thereby violated the lease agreement and used the letter is a bogus attempt to cover up a pet after the fact.  That's what I'd argue in court if it came to it.  I'm not a lawyer or a judge, though.

I've often wondered this too and never seen it mentioned here. If the animal was there prior to the therapist letter it's a pet and in violation...and should be grounds for eviction. It may boil down to local laws regarding notices and a right to cure and/or what kind of mood a judge is in on any given day. I've definitely seen judges throw the law book to the wind and make a ruling on emotion, which is scary, but it definitely happens.

The 'ESA' definitely came prior to the letter. That's mostly my issue in this case. Letter is dated after I confronted the tenant, but references treatment going back some time. It does come from a legitimate local therapist. (I didn't call, but all the information/details about the therapist checks out.) 

I do hope for more regulations concerning ESAs. I have no problem with the concept, but I definitely feel like it has been abused.

Join the Largest Real Estate Investing Community

Basic membership is free, forever.