Emotional Support Animals

14 Replies

Hi, all! I asked my lawyer about service and emotional support animals. This is what he said regarding fair housing.

If an applicant or tenant wants to have a service animal or emotional support animal, the tenant must—unless it is clearly obvious—demonstrate, through documentation, that the applicant/tenant or a member of his family [1] has a disability, and [2] has a disability-related need for the service animal or emotional support animal that helps the applicant/tenant or family member enjoy his/her housing. If such documentation is provided, you must generally accept the animal per the Fair Housing Act.

When an applicant or tenant makes such a request, you may ask for documentation supporting the need for a service animal or emotional support animal. Such documentation may come from a physician, a psychiatrist, a social worker, a counselor, a case manager, or some other mental health professional or practitioner who has treated or worked with the person who is claiming to have a disability, and such documentation should establish that [1] such person has a disability, and [2] the animal in question will provide some type of disability–related assistance or emotional support so that the tenant can enjoy his/her housing.

If the applicant or tenant provides the proper documentation, he can keep the animal and you cannot charge a pet fee, an additional security deposit, a pet deposit, pet rent, or anything additional because a documented service animal or emotional support animal is considered a “device” like a cane or a wheelchair. However, once the animal has moved in, it must behave itself just like any other pet. It cannot tear the place up, poop where it wants to, attack other people or pets, or bark its head off. If it does, you can treat it just like any other pet and take action accordingly.

Let me know if you have any follow-up questions.

HIPPA restricts disclosure.  Fair Housing restricts you asking about the disability.  Seek another lawyer.

As a landlord, you can set a NO PET policy unless the Pet Agreement is signed.  In that agreement, you can charge an extra deposit and monthly rent for the pet - - ie: make them understand the cost that a pet brings with it.

@Jeff B. I thought you could seek documentation from a professional saying that they have a diagnosed disability that requires a pet, as long as you don't request specifics about their disability?

I also believe that Fair Housing, with regards to emotional support animals for the mentally disabled, absolutely trumps a no pet policy.  You can deny rental based on other disqualifying criteria.  In the eyes of the state, denying rental to a mentally ill person who needs an emotional pet is akin to denying rental to a physically disabled elderly individual because they need a cane.

Denying rent to a person with a verified disability that requires them to have an emotional support animal, based on the fact they have a 'pet', can land you in a heap of trouble.

Also, you usually can't charge deposits, fees or rents for the emotional support pet unless it's for reasonable accommodation (doggy door and etc).  I believe you can charge for the accommodation and for reverting the change down the road up front.

You can evict or get rid of the animal if it poses a threat, violates any noise ordinances, is destructive to the property and things like that.   You can also charge for damages at the end of the tenancy.  In some instances, you can require the animal be spayed or neutered as well.

These things could vary from state to state specifically so talk to a good, local attorney.

@Justin Fox - -Also, you usually can't charge deposits, fees or rents for the emotional support pet unless it's for reasonable accommodation (doggy door and etc). I believe you can charge for the accommodation and for reverting the change down the road up front.

Clearly, having a set of terms that ONLY applied to ES pets would be wrong.  However, I believe that a blanket, uniform pet policy that applies to all applicants is not discriminatory.  I have had such a policy for almost two decades and thus IMO would stand the test.  Treat everyone precisely the same and the LL will do well.

my advice came from a local attorney. You cannot discriminate against a handicap in want shape or form. In the case of support animals you can ask for documentation from their doctor and why they need a support animal. 

They aren't the same because they usually arent trained for a function like a seeing eye dog.

If you live in another state ask a local attorney what your states policy is in emotional support pets. Also be very familiar with the fair housing acts. 

You can't even have a no pet policy because of fair housing. I am protecting my company from people trying to get around the no pet policy. 

@Matt Carey Some of the advice he gave was correct, some not so much!!

A service animal is considered a dog or miniature horse that provides support and service to the individual. 

An emotional support animal can be anything (horse,snake, dog etc...) that provides support/help to the individual. If it is not readily visible as to what their disability may be, you can ask; what is it that your pet does for your disability? You can also have the doctor fill out your form, helping to get rid of the people that buy papers online. IF accepting the emotional support animal would be at a detriment to the owner, such as a landlord insurance policy possibly being cancelled because of a vicious breed of dog.

I know its scary and crazy, I feel like I walk on eggshells sometimes. All we can do is try and fight in Washington for better clarification and help for everyone involved

what form do you use? I don't have one.

A follow up from my lawyer regarding insurance.

In such case, you’re supposed to shop for and purchase another insurance policy that does not restrict against “dangerous breeds.” If the price of a different insurance policy is cost-prohibitive, then such additional cost may give you grounds to deny the restricted-breed service animal.
To be more specific, one of the two basic grounds for denying someone’s request for a reasonable accommodation under the Fair Housing Act is if granting the request causes a financial hardship on the landlord. So, if you look for a new insurance company and find out that new insurance which does not exclude restricted-breed services animal is too expensive and creates a financial hardship, that would give you grounds to deny the applicant’s request.
CAUTION: If you deny the applicant’s request on the foregoing grounds, the applicant can file a Fair Housing Complaint. If that happens, the Fair Housing investigator will very likely ask [1] how many other insurance companies did you contact (and can you prove it), and [2] what were the prices of the other insurance policies that would create a “financial hardship” for the landlord?
So, if you end up going this route, make sure you can prove that you searched for alternative insurance and could find nothing that was economically feasible. Maybe you’ll get lucky and find alternative insurance that does not exclude restricted-breed service animals at a reasonable cost.

What everyone needs to understand about the HIPAA (note the CORRECT spelling: Health Insurance Portability and Accountability Act) is that it restricts access to PHI (Protected Health Information) on a need-to-know basis. 

You should DEFINITELY consult an attorney who is fluent in such matters.

We learned this lesson the hard way this week.  We have co-sharing / executive suites in downtown Tampa.  The Florida service animal rules extend to service animal trainers, as well. These trainee animals are given equal privileged and access.  It makes it tough in a shared office environment to have an animal that is not yet game ready. (i.e. still whining, barking and jumping).  We also learned that landlords do not have to allow access for emotional support animals in a commercial environment.  

@Jeff B.

We agree on a lot of things BUT ...you cannot restrict ESA or other service animals. That is prohibited. You can prohibit PETS..but service animals are not considered pets under the law. Additionally, you cannot charge one dime more, no "pet" fees, increased deposit, anything. However, if the service animal does damage you CAN legally make a claim against the deposit. I just joined NARPM and they are having an expert in fair housing come speak in the next couple of months. I joined just to hear their take on fair housing and service animals. 

Originally posted by @John Thedford :

@Jeff B.

We agree on a lot of things BUT ...you cannot restrict ESA or other service animals. That is prohibited. You can prohibit PETS..but service animals are not considered pets under the law. Additionally, you cannot charge one dime more, no "pet" fees, increased deposit, anything. However, if the service animal does damage you CAN legally make a claim against the deposit. I just joined NARPM and they are having an expert in fair housing come speak in the next couple of months. I joined just to hear their take on fair housing and service animals. 

 didn't intend to RESTRICT, but to just treat the ESA as any/all other pets; aka true equality :grin:

Point noted; not being considered as pets

Love to hear the takeaways from the Fair :)

I just had a new tenant tell me they have 3 pets that are emotional support animals......3?????

They told me they got them registered at one of those online sites that will register them within 48 hours. Any advise please? 

have them get a doctors note explaining her need for all of them. 

You mean a pet? Emotional? That's s a new legal, politically correct classification for compliance of past generation documentation. 

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