Question regarding ESA disclosed post-signing

[Benjamin Fishler]

We have a new situation here that we’d greatly appreciate input on from the BP community… but first, anyone know a good lawyer to have on-hand for questions like these/cost?

We screened out many, many tenants that applied to our property. We did thorough background checks, social media, checked references, high salary, good credit score, etc…picked the most qualified, best-fit for our single-family home (note that it has a completely separate ADU on the lot in the back). We even had a fairly generous policy of up to 2 pets with no pet rent and only pet deposit. The tenants inform us they have only one small pet dog, and we were A-ok with that. We get contracts signed; deposit paid. Tenant will be moving in in a few weeks.

Now enter the world of ESA’s: less than 10 days after signing contracts, tenants say that both they and their significant other talked with their therapist and came to the conclusion that they needed additional ESA dogs (each)…so now it will be 3 dogs total on the property.

To summarize what was explained to us: They booked an appointment with a licensed therapist, built up a rapport with them and got diagnosed, went out and adopted two animals, got them temperament tested, and know they get along well with their existing dog…all in under 10 days after signing.

To me, this sets off a number of red flags:
a) They’re not up-front/transparent with us on this, what else could they be hiding?
b) They’re trying to game the system.
c) They approached email as “this is what is happening”, not requesting…so strong sense of entitlement. We’ve found that attribute in tenants that can signal bad things ahead. As I understand the law, it should be a request for reasonable accommodation, per qualified disability. Landlord investigates and tries to reasonably accommodate per law.

Also to note is that during social media checks, I did note that they seemed to each have another dog dating back many years ago….I figured they no longer had these dogs. Upon re-checking one of their social media profiles, I noticed they had recently made all the prior pictures that were visible during our initial search now private – and it was done right before emailing us with this new information. This certainly gives the appearance of trying to hide something, although I did capture screenshots with dates of them posting pictures of one of the dogs.

Even if they had legitimate ESA dogs each, they didn’t frame it as “we had them, but didn’t want to tell you until after”. The framed it as: “we talked with a therapist…and decided to get them”…within 10 days of signing.

To be clear: We have no problem with official service animals at all – they’re trained. And we might have actually been OK if they told us up-front about 3 dogs total, considering we openly said 2 were OK. It’s the fact that they were deceptive that’s giving us major pause about these tenants.

So my question is as follows:

-What would those in the BP community do? What can we do?

I think collectively we’ve sort of just rolled over to the ESA-train. What are legal ways to verify these are legitimate requests, and not just someone trying to game the system? If it was determined that these were existing pets and they just turned them into ESA shortly after signing the contracts but lied about this directly on the application, is that grounds for rejection? And what are ways to question why the first dog can’t be an ESA to one of them – ie, why 3 dogs to 2 people? (I’ve seen the arguments about different breeds for different purposes and where they’re allowed – ie, a pet bird for around the house, but a pet dog for when they go out)…but why one person needs two dogs, and one served as an ESA, the other doesn’t?

If it helps, there are some other considerations:

• 1) We live in California
• 2) We meet the criteria that would normally exempt us from these rules (own less than 3 rentals, self-manage, not an LLC, etc…)…but we're in California, which I believe is more stringent.
  3) We may actually move to the ADU in the back and be owner-occupied lot (TBD), so I'm not sure if that'd make us escape the requirements. Don't think so in CA, but not sure.
• 4) We sign all of our tenants on month-to-month from the beginning (the market near us is perpetually hot, and it’s really easy to get a large candidate pool)
• 5) From when we started advertising to getting the contracts signed to now, the home is probably under market value and could reasonably have rent raised
• 6) We’re not limited by CA’s 5% rent increase limit due to criteria listed in #2 (and put the required notice in our rental agreement per CA’s AB 1482)
• 7) They haven’t moved in yet

Reading through the existing forums, it seems like there are a few first steps:
a) Request documentation (i.e., ask for letter from licensed therapist/etc. on official letterhead, not a random internet certification).
b) Say that we'll try and make a reasonable accommodation (but need breed/weight of dogs so we can verify with insurance of any substantial premium increases and/or insurance cancelation). And then there's the consideration that should we end up renting out the newly built ADU and allow pets there too, the insurance may put limitations – if the front house as 3 dogs, and the rear house then pulls the same stunt and 3 days…6 dogs on an original SFH lot? Might be even more hated by neighbors.

But what further steps can you take? Can you ask/politely challenge the therapist why one of the existing dogs wouldn’t function as an ESA? If we find out they did have these dogs for 5+ years now, and registered them as ESA after signing the contract, would they have been considered to falsify information on their initial application since they had those dogs, they weren’t ESA, and they didn’t list them? Can we ask for documentation showing that they acquired the dogs within those 10 days to validate the story they told us via email?

We already have the peace and quiet clause in the contract, so if it does end up going through and the three dogs do make a lot of noise…

Either way, looking for best way to approach. And, if any of you know/recommend a good lawyer to have on-call (and what are the typical costs associated with that? Is it a per-question basis?)

Much appreciated for any input.

[Dan H.]

Contrary to @Michael Hayworth reply..

HUD protects ESAs regardless of who screened the tenants or rented the unit. There were things you could have done differently and a few things you can still do. ESAs do not require any training.

I am not sure how your application requested information on animals.  If it used the word pets, you are limited as an ESA does not have to be considered a pet.  If you can show they lied on the application, which requires the animals to be called animals and not pets, I would not rent to them.  Note that you have to be able to show this.  They may sue, but lying on our application is grounds for the application being invalidated.  If you have this policy, then let them sue.  

Do you have good liability coverage?  If not I recommend you purchase an umbrella policy for protection going forward.

Assuming you cannot show that they lied on their application, then do the following: 1) indicate all ESA/support animal determination is to be performed by PetScreening.com.  They claim to screen bogus ESA certificates (ones that only require a fee to get).  I personally do not believe they do a great job at this, but they do a better job than I can do and are 3rd party.  It may be more beneficial what the tenant believes of the Pet Screening than what I believe.  if their ESAs are bogus, it may be enough to get them to look elsewhere.  2) require them to have renters insurance that lists each animal as covered.  3) This one may be difficult/impossible if you were already allowing pets, but inform them that they will be charged for placing the unit back into an animal free state including professional HVAC cleaning (potential tenants have allergies so there is a need for animal free properties).  As indicated this one may not be an option in your case because you cannot charge them to put the unit in a state that exceeds what it was already.  Our animal free units started off free of all animal dander, fur, etc.  So charging to put back into this state is reasonable.

If none of the above items discourage the tenant from wanting your unit...

I am assuming your ADU is less than 15 years old and rent control rules do not apply. This would allow you to get rid of them at the end of lease. My preferred way to get rid of such tenants is to raise the rent above market so that they give me notice. They may think I am clueless to market rent but I do not care what they think. What i care about is to reduce the chance of blow back. if they provide me notice, they cannot claim I booted them for retribution, or discriminations, or anything because they gave me notice; I simply raised their rent which I am allowed to do. You also legally could just indicate the lease is not being renewed, but this does leave open claims of retribution.

I am sorry this happened to you. I believe a large majority of ESAs are bogus. Unfortunately, HUD protects ESAs virtually the same as service animals (in one case more than service animals as service animals have limitation on species but ESAs do not). Note that many/most airlines have stopped or reduced their ESA accommodations. I hope this comes to housing, but I am not expecting it.

Here is a recent thread on ESAs: Tenant with 2 service dogs (biggerpockets.com)

Good luck