The Service Dog Dilemma

The Service Dog Dilemma

Rental Property Investor · Wormleysburg, PA · Member since 2018 · 20 posts · 16 votes

I wanted to share with you a situation that recently came up with one of our rentals regarding service dogs.  Please note we are located in Pennsylvania, though this issue is at a federal level.  

The Situation:   Our tenants approached us about potentially getting a puppy and training it to be a service dog for them.  They had explained that one member of the family had a diagnosed condition which would benefit from a service dog (sorry to be vague, but I'm not sure if saying the actual diagnosis is illegal).  We do not currently restrict pets at this location, though we do require more information, a pet addenda and associated fees, etc. so we were up for discussing once they were more serious about getting a dog and its breed, age, etc. Long story short, we found out about the actual puppy within two hours of its delivery to their new owners (our tenants).  SO the situation - we now had a puppy in a rental of ours with no written approval to be there and the disagreement that this puppy (7 weeks old) was designated a service dog.  We, as landlords said no, its not a service dog.  The tenants, naturally disagreed. Please understand too that we have no issue with a service dog or our tenants having one, we were just concerned that they would have every intention of training this dog, but then grow slack on its training and ending up with just a pet, and for free, no less, in our home and causing potential damage.  So, we began to research.

The Research:  Oh, the internet.  We found many, many articles discussing this issue, training websites selling their certificates and people sharing their stories.  What we couldn't find were the actual laws and definitions in the law pertaining to our direct issue of this puppy, who currently has no other training, is seen as a service dog in the eyes of the law.  Through some serious digging, and calling several governmental departments (all of which were as confused as we were) here's what we found.

1) The Department of Agriculture (PA) turns out they're the ones who enforce laws in and around service animals (news to us!).  Unable to get anyone on the phone, we went digging on their website and found a PDF specifically talking about service animals (Link Here).  This article mostly spoke about non-discrimination and service dogs in businesses.  While helpful, it wasn't exactly what we were looking for.  What DID help were the sources listed and their referral to our next source.

2) The ADA.gov (Americans with Disabilities Act) is a part of the United States Justice Department and defines the standards in the country with regards to those with disabilities.  On this website, we were able to find a document that actually define and elaborate on what a Service Dog is defined as.   In this document (Link Here) it states that "Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA."

The Conclusion:  Because we were able to find that document and review the definition of a service dog, we were able to show the tenants that because their puppy was not yet trained to "provide a task directly related to the person's disability" the dog was still a pet, not a service dog.  We agreed that once their dog was trained, they just needed to submit proof to us from their doctor that the dog, in fact, has underwent and completed training specifically related to our tenants disability.  Once submitted, we would forego the pet fee.

Has anyone else gone through anything like this?  I would love to hear feedback on what you have done when it comes to service animals.

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Severna Park, MD · Member since 2013 · 7k+ posts · 7k+ votes
7y

I think its time for the annual rent increase . 

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  • Rental Property Investor · Los Angeles, CA · Member since 2017 · 2k+ posts · 5k+ votes
    7y

    You need to contact a lawyer, because you're going to get yourself sued if you don't know the laws.

    The Fair Housing Act covers housing, not the ADA. You need to follow FHA guidelines.

    BTW, this dog will be called an Emotional Support Animal in a few days and they will have a "certificate" from an online quack that prescribed it and you will be forced to allow it.

  • Member since 2016 · 13k+ posts · 12k+ votes
    7y

    I believe the approach you have taken is spot on. Since they were existing tenants and you do not have a no pet policy it is not a issue of denying the pet but rather whether the pet fee applies. It is not a qualified service animal and there for you can collect a fee. If they wish to challenge your position, as a landlord, I would welcome the challenge. As long as landlords continue to operate out of fear we will never have answers.

    Document every thing, all conversations, and, as Greg suggests, be prepared for them to play the "emotion" card. If they are attempting to run a scam on the service dog approach their fall back will be the emotion scam. If they do, based on them claiming a doctor recommended a "service" animal you can continue to charge a pet fee.  

    In your position if the animal does not ultimately complete training as a fully certified service animal I would not be renewing their lease.

  • Severna Park, MD · Member since 2013 · 7k+ posts · 7k+ votes
    7y

    I think its time for the annual rent increase . 

  • Russell BrazilBusiness Member
    Moderator
    Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
    7y

    ADA is a law, and not a part of the DOJ. It is a law that addresses public accomodations, nit residential real estate. The department of agriculture also has nothing to do with it. That dept of ag link again adresses ADA issues which are not applicable to residential real estate.

    Residential real estate is governed by the Fair Housing Act and its later ammendments. 

    Read HUD guidance memo fheo-2013-01. You should be able to find it by googling pretty easily.

  • Rental Property Investor · Wormleysburg, PA · Member since 2018 · 20 posts · 16 votes
    7y

    @Greg M. You are correct, if this situation becomes more of a discussion we will have our lawyer involved more formally; laws are always changing and from all the articles we've read, this particular subject can be grey.  Please note that the Fair Housing Act of 1968 was passed to deal with discrimination as it pertains to housing.  While we reviewed these guidelines as well (actually it was our first web search) it only states that we cannot discriminate against someone with a disability, and therefore their need for assistance from a service animal.  The ADA, a part of the Civil Rights Division, while not an authority or enforcer of this subject with regards to housing, is used as a primary source and baseline for all of these laws and acts relating to disabilities.

    Also, the ADA states that "Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA."  Again, if this becomes an issue, we will dive more fully into our states laws and their interpretation.  If they provide appropriate documentation then we will of course allow it.  Pretty tough to figure for a 7-week old puppy though, no matter how cute she is.

    @Thomas S. We had the tenants sign a pet addenda (realtors version) and initial and date the ADA document stating they've read and agree to the definitions, so hopefully that helps in the long run.  I guess only time will tell.

    Thanks everyone for your feedback, keep it coming!

  • Rental Property Investor · Wormleysburg, PA · Member since 2018 · 20 posts · 16 votes
    7y

    @Russell Brazil I'm sorry if my info was misleading! I'm not sure if its just Pennsylvania, but when we called the Attorney General's office in Harrisburg, they were able to connect us with the department who oversees Service Animals. That phone number and person worked under the Department of Agriculture. They were the point of contact we were directed to for any service animal questions. I merely posted the information for others to share the article's sources and show how we ended up on the ADA's website. All sites revolving around enforcement stated terms like 'service dog' but never clearly defined them, hence why we went on a document deep dive beyond HUD.

    I did find the memo fheo-2013-01, thank you! It did not come up when I searched generically on HUD's website (had to site the memo specifically). I've attached it to this response for others (Here!).  I'm glad to see that that memo references the ADA definition.

    To our specific situation, because these were existing tenants currently under a one year lease, we had less concern about the "discrimination" and more concern about signing the pet addendum and collecting a fee for potential damages caused by their puppy (who is currently not potty trained, is teething, etc).  In an attempt to be even more neutral, we only charged them the exact same amount as another tenant of ours who has a dog, in hopes to further show we do not want to discriminate; just want to make sure our home can one day be repaired from potential damage.

  • Rental Property Investor · Cleveland, MN · Member since 2017 · 518 posts · 354 votes
    7y

    You might also want to mention to them that your pet fee is less than an attorney if they start bringing it up.

  • Russell BrazilBusiness Member
    Moderator
    Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
    7y
    Originally posted by @Jennifer Rysdam:

    You might also want to mention to them that your pet fee is less than an attorney if they start bringing it up.

     Thats a perfect way to get a fair housing complant filed against you..which costs the tenant zero to file and $16,000 fine to the landlord plus legal costs.

  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    7y

    Department of Agriculture may have information about service animals but they do not create the laws.

    ADA covers public spaces.

    Fair Housing covers residential rentals.

    I wrote a blog about it HERE and it should answer all your questions.

    The short version is that you already accept pets so the only request for accommodation would be to waive any pet fees or deposits.

    If you do this enough, you'll learn that the emotional support animal laws are absolutely abused. In my experience, 90% or more are absolute shams to get pets into a rental by people that are not actually disabled or seeking treatment for a disability. You can spend a ton of time learning to deal with it or hand it off to petscreening.com and let them do all the work for free. I manage over 300 rentals and it's an awesome service and takes a big load off me and my staff!

    The DIY Landlord Book4.7247 Reviews
  • Rental Property Investor · Erie, PA · Member since 2018 · 6k+ posts · 9k+ votes
    7y

    A tenant can simply have the local family doctor or counselor sign a paper who knows virtually nothing about dogs or what an esa is supposed to legally provide as a service . It’s a simple task for the tenant . They don’t need to be blind or deaf or have epilepsy. Just saying they have depression , anxiety , or suffered a traumatic event in their past is enough to give Fido the green light . This is highly abused and becoming more common place in the rental market ..sadly I have not read where a landlord has much they can do to stop this insanity without risk if serious fines and lawsuits

  • Littlestown, PA · Member since 2019 · 16 posts · 4 votes
    7y

    I believe it is important to distinguish the difference between an Emotional Support Animal (ESA) and a Service Dog. @Tim Ellis has stated the difference several times, but it seems some people in this thread are still grouping them together. A service dog is NOT an ESA and an ESA is NOT a service dog. These are 2 distinct classifications and are treated differently in the eyes of the law. I believe Tim has done his research and is in the right. Even if his tenant gets a quack Dr to give his dog an ESA certificate, it is still just a pet and Tim can charge the tenant his pet fee.

    Be careful about digging too deep in what the Service Dog does. You are only allowed 2 questions and the owner does not need to show documentation. I'm also fairly confident you are not allowed to ask the dog to perform its task. Go to this LINK to read a Blog that has it very well spelled out.

  • Rental Property Investor · Los Angeles, CA · Member since 2017 · 2k+ posts · 5k+ votes
    7y
    Originally posted by @Brian Kelch:

    Even if his tenant gets a quack Dr to give his dog an ESA certificate, it is still just a pet and Tim can charge the tenant his pet fee.

    And the FHA just assessed you a $16,000 fine. How would you like to pay it?

  • Real Estate Agent · PA · Member since 2017 · 63 posts · 28 votes
    7y

    I think some of you are blowing this out of proportion.  I believe Tim is playing it safe and well focused by having the tenants sign a form about it.  I am sure I could get a service dog from my past military service and I don't think it is an easy thing to do for those who need one so I would be hesitant to question it too aggressively to not "offend" anyone.  @Tim Ellis I would follow the path you are currently on.  The pet fee fully applies until designated as a service dog.

  • Investor/Accountant/Builder · Meno, OK · Member since 2014 · 1k+ posts · 918 votes
    7y

    I read that a so-called service dog just mauled a 5 year old girl at an airport. That is just what I need at one of my rentals.

  • Rental Property Investor · Edison, NJ · Member since 2016 · 753 posts · 565 votes
    7y

    @Tim Ellis it sounds to me that you handled this well. I would would visit the property more often now to make sure that the puppy is not damaging it since puppies can be very destructive. If you see any evidence of damage I would not renew their lease when it is renewal time. Consult a lawyer though to make sure you do it legally.

  • Rental Property Investor · Dyersburg, TN · Member since 2019 · 45 posts · 31 votes
    7y

    @Tim Ellis We have had two attorneys and even had our insurance agency to contact the underwriters as well and nobody will give a clear cut answer to the issue. We require a dr letter to allow but like someone mentioned it’s not a big deal for tenants to obtain such documents. It is a growing abuse among tenants that we have.

  • Littlestown, PA · Member since 2019 · 16 posts · 4 votes
    7y

    @Greg M. A fine based on what grounds? Again, an ESA is a pet, not a service dog. He is not denying the pet, he is just looking to get his pet fee. He can charge his pet fee up until the point the dog is a fully trained service dog.

  • Rental Property Investor · The Vampire State · Member since 2013 · 2k+ posts · 2k+ votes
    7y

    @Brian Kelch  as much as I disagree with the rampant abuse that we are all seeing, unfortunately in the eyes of the law an ESA is NOT a pet.  It has different rules than a service animal, but is nevertheless not considered a pet and can land you in hot water for treating it as such.

  • Rental Property Investor · Los Angeles, CA · Member since 2017 · 2k+ posts · 5k+ votes
    7y
    Originally posted by @Brian Kelch:

    @Greg M. A fine based on what grounds? Again, an ESA is a pet, not a service dog. He is not denying the pet, he is just looking to get his pet fee. He can charge his pet fee up until the point the dog is a fully trained service dog.

    This is 100% incorrect. An ESA is a support animal, not a service animal. FHA is clear that you have to make a reasonable accommodation for an ESA. The waiving of a no pets rule, pet fees, and pet deposit are reasonable accommodations.

  • Steinhatchee, FL · Member since 2017 · 77 posts · 69 votes
    7y
    Originally posted by @Arlan Potter:

    I read that a so-called service dog just mauled a 5 year old girl at an airport. That is just what I need at one of my rentals.

    Not a service dog. It was a so called Emotional Support dog. I can see landlords trying to get legislation passed against these Emotional Support scams. Something has to be done about this. Landlords have absolutely no recourse against these dogs who can not only do damage to houses, but can injure other people. 

  • Rental Property Investor · Wormleysburg, PA · Member since 2018 · 7 posts · 8 votes
    7y

    Has anyone found a government document that further explains an emotional support animals's role and requirements pertaining to rentals?  I'm seeing articles of varying opinions and understandings (and the ADA definition stating they're not service animals) but I cannot find anything on a government organization's letterhead addressing this definition directly.  I'm attempting to keep these documents on file in the event I'll need to reference them with a lawyer/DOJ in any way.

    This article HERE is great, by the way @Nathan Gesner, thank you for writing it!

  • Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    7y

    @Tim Ellis

    FHA absolutely applies to your situation. Yes, the ADA may apply to you too. But FHA is the main law you need to worry about. Being in Pennsylvania, you also need to deal with PHRA although the guidance there is minimal.

    Note that the FHA, ADA, and PHRA all say different things about the kind of animal it protects and the extend to which the landlord needs to comply. So when you analyze these situations, you need to comply with all three. It's very common for a landlord to be in compliance with one law but non-compliant with others.

    Based on what you wrote, you probably didn't comply with the FHA.

    Listen to what @Russell Brazil, @Nathan Gesner , and @Brian Kelch wrote: the standards for services animals under ADA has nothing to do the standards for assistance animals under the FHA. Anyone who tells you otherwise has no idea what they are talking about. 

    In these situations, you need to analyze the situation under both the FHA and the ADA. You also need to analyze the situation under the applicable state law (PHRA in PA) and any local laws (e.g. some municipalities have their own version of disability laws for tenants).

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.

  • Rental Property Investor · Wormleysburg, PA · Member since 2018 · 7 posts · 8 votes
    7y

    Direct quote from what I found on HUD.gov (Link):

    "Federal nondiscrimination laws provide housing protections for individuals with disabilities. These protections apply in most private housing, state and local government housing, public housing and any other federally-assisted housing programs and activities. The Fair Housing Act (FHA) prohibits discrimination in housing and housing-related transactions because of disability. Section 504 of the Rehabilitation Act [of 1973] prohibits discrimination on the basis of disability in any program or activity receiving federal financial assistance. Titles II and III of the Americans with Disabilities Act (ADA) prohibit discrimination on the basis of disability in all programs, services, and activities of public entities and by private entities that own, operate, or lease places of public accommodation."

    That link also directs you to their breakdown of terms like "disability" and "reasonable accommodation" etc. for anyone who wants to read it.

  • Philadelphia, PA · Member since 2019 · 174 posts · 124 votes
    7y
    Originally posted by @Brendon Grover:

    I am sure I could get a service dog from my past military service and I don't think it is an easy thing to do for those who need one so I would be hesitant to question it too aggressively to not "offend" anyone.

    There are websites which specialize in having a "therapist" call you and discuss your "need" for a support animal before having that therapist sign a document for presentation to your landlord.  There are multiple ones and they're nice and streamlined with you getting the signed certification letter via email within 24 hours "if you qualify".

  • Rental Property Investor · Cleveland, MN · Member since 2017 · 518 posts · 354 votes
    7y
    Originally posted by @Russell Brazil:
    Originally posted by @Jennifer Rysdam:

    You might also want to mention to them that your pet fee is less than an attorney if they start bringing it up.

     Thats a perfect way to get a fair housing complant filed against you..which costs the tenant zero to file and $16,000 fine to the landlord plus legal costs.

     I disagree. These tenants have not provided ANY proof that this is a service dog. What would the fair housing complaint be for? They already have the dog and are in violation of their lease if they are refusing to pay dog fees. If anything the landlord could get a fair housing complaint for making everyone else pay pet fees and not these people. They have to be fair.

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