Service Animals, what's an owner to do?
Kim Meredith HamptonBusiness Member
Real Estate Broker · St Petersburg · Member since 2014 · 2k+ posts · 2k+ votesService Animals, what's an owner to do?
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Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
9y@Kim Meredith Hampton there is lots of mis-information being provided in this thread. I am sure people have good intentions, but it can be confusing.
First of all is the confusion between Service Animals and Emotional Support Animals. The DOJ has clearly defined that under the ADA Service Animals to only include any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. They also specifically state that Emotional Support Animals do not qualify as Service Animals under the ADA. The good thing about he ADA Service Animals is that they have been professionally trained and behave better than most of your tenants. You can only ask two questions of a Service Animal. For a service animal you can only ask two questions. Is it an animal that is required for a disability and what specific work has the animal been trained to perform. Be careful because perspective tenants will call their animal a Service Animal when in fact it is an Emotional Support Animal.
Emotional Support Animals also known as Assistance Animals are covered under FHA (not ADA). They require no training and although they are typically dogs, they theoretically could be a cat, pig, horse, snake, etc. They generally treat some type of mental disorder, but realistically most anyone can say they are depressed and qualify. I recommend a doctors form instead of note. By using a doctors form, you control the content and can ensure it is only completed by a trained mental health professional. In other words, no buying letters off the internet. You send the form to the mental health professional and they send it back to you - never entering the tenants hands. You do have to accept these animals without extra deposit or extra pet rent. People claim that you need to accept dangerous breeds, but there is precedence that says you don't have to. If the animal poses a direct threat to the safety of others, you do not need to accept it. There is also legal precedence through court cases that if your insurance doesn't accept the breed, it would be an unreasonable burden to have you accept the animal. Obviously if your insurance will drop you, how can you accept the animal?
@Cody Barrett you can legally ask only two questions for Service Animals covered under the ADA per the DOJ per policy from 2013. The court case you referenced predates this DOJ ruling. The other thing I would point out is that the animal in that case doesn't appear to have been trained, so it wasn't a Service Animal, but as actually an Emotional Support Animal. I am not a legal expert but I think some of the questions you are proposing could be illegal to ask:
https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
58 Replies
Lot of good information on this post. And a lot of miss information on this post. Which can harm the landlord. Registered Service Animal vs Support/Comfort/Companion Animal is irreverent to the landlord.
If you ask for a doctor slip or service animal registration from a blind person you are in violation.
In responding to a request for accommodation (to change your pet policy). Landlords need to.....1. Determine the person has a disability
2. Determine the person has a disability related need for that animal
if the disability is NOT apparent you can ask for documentation on their disability-related need for the animal from a "medical professional". Note the statute referenced in prior post does not say from a "doctor".Undue hardship to the landlord (insurance coverage / expense) or violation of rules after they move in are all valid reasons to denial or tell the pet to go.
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes9y
Originally posted by @Ben Tate:
Lot of good information on this post. And a lot of miss information on this post. Which can harm the landlord. Registered Service Animal vs Support/Comfort/Companion Animal is irreverent to the landlord.
If you ask for a doctor slip or service animal registration from a blind person you are in violation.
In responding to a request for accommodation (to change your pet policy). Landlords need to.....1. Determine the person has a disability
2. Determine the person has a disability related need for that animal
if the disability is NOT apparent you can ask for documentation on their disability-related need for the animal from a "medical professional". Note the statute referenced in prior post does not say from a "doctor".Undue hardship to the landlord (insurance coverage / expense) or violation of rules after they move in are all valid reasons to denial or tell the pet to go.
It is relevant what type of animal it is because they are governed by different rules. You don't ask for a doctors note for a Service Animal. You are right, you cannot ask a blind person, but if the disability is not obvious you do have a right to ask question. Still keep in mind one is governed by ADA and the other by FHA/HUD and they are handled differently. Someone calling an animal a Service Animal when it has not had any training is incorrect. It may be an ESA if they have medical need supported by a medical health professional. It has to be someone that is actually treating them.
A landlord specifically needs to be careful of people who are misrepresenting a condition or status of the animal to get their dog into the home for free. The Emotional Support Animal status is highly abused. People bring bogus certificates from the internet or have their neighbor who is a social worker write up a letter. You don't have to just take whatever is given you at face value.
One good example to keep in mind is that ADA requires a Service Animal be allowed in a store or restaurant, but an Emotional Support Animal is not required by law to be allowed in private businesses. That is because an ESA is ONLY covered under FHA/HUD so their rules only apply to housing. By comparison ADA is much more broad and the key difference is the animals are trained and the level of vetting for disabilities is higher. I could tell my doctor I feel depressed and need a dog and he would write a letter for an ESA.
- Joe Splitrock sadly it appears more requests I get are sourced by medical professionals. Tenants come preped with a letter from the start. These letters are vague but not vague enough for me to be comfortable with a denial. I am going to explore the have a medical professional sign my form route. Might deter the corrupt ones enough
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes9y
Originally posted by @Ben Tate:
Joe Splitrock sadly it appears more requests I get are sourced by medical professionals. Tenants come preped with a letter from the start. These letters are vague but not vague enough for me to be comfortable with a denial.
I am going to explore the have a medical professional sign my form route. Might deter the corrupt ones enough
My local fair housing rep that represents HUD on these matters told me specifically to use a form and not just accept letter in hand. You don't know where that letter came from. I will see if there is some way that I can post a copy of the form I have.
- Rich Ng If the disability is not apparent you can ask for documentation from a medical professional Good luck determining if that documentation meets the requirements of "disability-related" need. I don't feel comfortable denying on vague documentation which is usually what I get. The Notice that Joe Splitrock listed from hud in 2013 is the latest info I know of from the government on the subject and is worth a read
I agree with you on denying on vague documentation. My thought is that those that are trying to take advantage of it will not submit any doctor form and actually not continue with the lease process.
Of course, there is the rest of the entire screening process too.
Thanks.
- Phoenix, AZ · Member since 2015 · 345 posts · 138 votes9y
Is it true that in order for the tenant to succeed on a claim of violation of the Fair Housing Act, he or she would have to show five things:
1. That he or she suffers from a disability;
2. That you knew or should have known about the disability;
3. That the accommodation is necessary to afford him or her an equal opportunity to use and enjoy the dwelling;
4. That the accommodation is reasonable; and
5. That you refused the accommodation.
- Phoenix, AZ · Member since 2015 · 345 posts · 138 votes9y
Also, if a landlord does inquire about the need and accommodation by asking questions wouldn't the benefit be that it shows good faith on your part; that you want to take the correct and legal course of action in providing an accommodation that is reasonable for the alleged disability. If your case goes to court, the fact that you sought this information would play to your favor. No?
Maybe in NY you can charge a pet fee, but MA and maybe other states its against the law to charge extra fees.
No, that is the problem with this whole thing. There is rules and laws that you are breaking if you ask them just about anything about their medical condition.
- Hi Kim, I am currently president of the Iredell County Landlords Association. I want to let you know about something that happened with a landlord that may be helpful to you. First and foremost let me say, cover it in the lease! Here's what happened. A tenant that moved into a property the lease stated no pets allowed, tenant obtained a bogus Internet registration for their "service animal". The animal continuously wandered away from the property and chased a neighborhood kid. The landlord sent letters that there were no pets allowed on the property and that the tenant would have to move. Of course the tenant fought it. Once in court, the magistrate was actually willing and ready to rule in the tenants favor. Fortunately this was a sharp landlord that did their homework. Gaining information about legitimate service animals, the landlord argued that a service animal is trying to protect, not to chase and attack, and that service animals do not leave the person that they are to protect. The landlord did win this case, in this case, but as we all know tenants are getting pseudo educated by the Internet. My advice, cover the scenario in a lease. Create parameters of what process needs to be followed if the need for a service animal develops. If it's a legitimate need, they should have no problem whatsoever, and service animals are generally very mild mannered and well behaved. It's a slippery slope, but the lease is always king. Cover it before it becomes a problem. I hope this helps.
- Investor · Palatine, IL · Member since 2015 · 69 posts · 31 votes9y
There is no state or federal agency to "certify" support animals, which is an interesting bit of trivia that most people do not realize. Those certification agencies you see are like the international star registry. You pay them and name a star after your grandma; give her the framed certificate, but that name is only valid with that company; not with NASA. NASA doesn't care what some firm being run out of a basement calls a star.
It is the same with service animal certificates. The government hasn't certified them. I've had to deal with this many times as a property manager. I just tell the person making the claim that their animal is a service animal that the burden of proof is on them to demonstrate that the state for fed agrees. They cannot prove it, because there is no such certification.
So then the question comes down to whether or not my client, the property owner, really wants to take it to court and let a judge decide if it is a service animal or not.
- 9yMindy JensenPro MemberBiggerPockets Money Podcast Host · Longmont, CO · Member since 2014 · 7k+ posts · 10k+ votes
@Cody Barrett , I'm really glad you're asking these questions.
I wrote an article for the BiggerPockets Blog about Emotional Support Animals . I think the regulations need to be updated and refined - as it is right now anyone can get a certification from a doctor that they need their ESA - for a few bucks on the internet. That should be fraud, and it dilutes the power of those who truly need it.
Think the Iraq War Vet who needs an ESA to help him with his PTSD. I don't want to deny him his animal - and chances are really high that the true ESA will be well behaved.
The frauds need to be weeded out, I like the story and retort from the landlord that @Sheila F. shared - but I wouldn't count on it to happen to you.
If a potential tenant has an ESA Pit Bull and your insurance specifically does not allow pit bulls, put that in writing in your qualifications. While you are required to make reasonable accommodations, if you cannot find an insurance company that will allow specifically allow them at a similar rate, then changing insurance companies would not a reasonable accommodation.
- 9yMike CumbieBusiness MemberREALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
I know it is a big no-no to ask the tenant about their illness, and I would never advocate it. However is it against policy to question their medical professional about their qualifications? This is more of for discussion than something I have done or plan to do.
I hereby certify that I am caring for (tenant name) and it is my professional medical opinion that they have "Fluffy" to help them.
My medical degree is from _____________________
My Malpractice insurance is through the following company: ___________________
My insurance number is:____________
I am a member of the following medical boards: ____________
I am making this determination as an employee of: _________
Signed: ____________________ - Phoenix, AZ · Member since 2015 · 345 posts · 138 votes9y
That is a great article ! Thank you for sharing that Mindy! I haven't had to deal with it yet but if I do then I'll feel more prepared on how to reach my tenant's needs while satisfying our needs as their landlord. Love the power of BP!
- Lender · Tyngsboro, MA · Member since 2009 · 3k+ posts · 2k+ votes9y
Originally posted by @Ben Tate:
If anyone has it in writing from their insurance provider that a particular breed or animal was excluded from their policy that would be interesting.
From my insurance agent regarding my insurance company:
The following breeds, even if a mix are prohibited: Pit Bulls, Rottweiler’s, German Shepard’s, Akita’s, Dobermans, Wolf-hybrids, Chows and Bull Mastiffs.
I also called the agent to ask if my insurance company would provide a rider that the tenant would pay for that allowed for any of these breeds. They replied that not only would they not provide a rider, but that they would cancel my policy if it were discovered that any of these breeds were kept by the tenants. And that if any dog was suspected of being any of these breeds, the same would apply. No tolerance at all. So if it looks like a duck...or pit bull.....
So that was a pretty definitive NO.
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes9y
Originally posted by @Mike Cumbie:
I know it is a big no-no to ask the tenant about their illness, and I would never advocate it. However is it against policy to question their medical professional about their qualifications? This is more of for discussion than something I have done or plan to do.
I hereby certify that I am caring for (tenant name) and it is my professional medical opinion that they have "Fluffy" to help them.
My medical degree is from _____________________
My Malpractice insurance is through the following company: ___________________
My insurance number is:____________
I am a member of the following medical boards: ____________
I am making this determination as an employee of: _________
Signed: ____________________The form I received from our local HUD representative only had three questions for the medical professional.
1. Is the household member disabled as defined on the attached page? (page provided uses definitions from 24 CFR 891.505 and 891.305)
2. In your professional opinion, does the household member need to keep an animal at the site in order to have the opportunity that a non-disabled individual has to use and enjoy the site? (Yes or No)
3. Please list the number and type of animals authorized:
The best part is the signature section which references title 18, section 1001 of the US Code that states knowingly misrepresenting information is a felony. The paragraph goes on to state potential penalties for misrepresenting information. Then at the bottom of that paragraph is a signature field for the medical professional.
The wording is such that it would scare any professional away from rubber stamping. The point here is not to filter out legitimate requests, but to block scammers who are trying to use a loophole to sneak their dog in.
So, although I like your questions, I think that HUD is pretty specific that only two questions should be asked of the medical professional. It is also reasonable to ask their title and location, but drilling them about their qualifications probably wouldn't fly.
- Attorney and Real Estate Broker · Madison, WI · Member since 2016 · 265 posts · 100 votes9y
Emotional Support Animals in Housing
Here is some reading material on the distinction:
The Department of Justice in the 2008 proposal makes clear that animals “whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well–being are not service animals.” Curiously, however, the Department concedes that its position may not be appropriate in the housing context:
The question, then, is how broadly should HUD's pronouncements regarding emotional support animals in projects for the elderly and disabled apply to housing in general (other than short–term housing covered by Department of Justice rules). The authors believe that there should be such uniformity and that the better reasoned case law supports such an argument.
A case from the Northern District of California, Janush v. Charities Housing Development Corp. (169 F. Supp. 2d 1133 (ND Cal. 2000)), held that, where a tenant owned two birds and two cats, the landlord failed to establish that there was no duty to reasonably accommodate non–service animals. In Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981)), the Fifth Circuit dealt with a case where the tenant sought to avoid eviction for keeping a small poodle in her apartment in a federally subsidized project. Although the decision was largely based on the Rehabilitation Act of 1973, 24 U.S.C. 794, the court remanded to the trial court for consideration of whether a reasonable accommodation could be made, given that the tenant had a mental disability that required her to keep the dog in her apartment. Both Janush and Majors were cited by HUD in its 2008 rulemaking on housing for the elderly and disabled (73 Fed. Reg. 63837), noting that "the Department's position is consistent with federal case law that has recognized, in cases involving emotional support animals in the housing context, that whether a particular accommodation is reasonable is a fact–intensive, case–specific determination." Courts have also recognized that training of service dogs need not always be formal. In Bronk v. Ineichen (54 F.3d 425 (7th Cir. 1995)), the Seventh Circuit found a trial court’s jury instructions improper in implying that a hearing (or signal) dog needed training from a certified school.
There are, admittedly, cases that have not been as accepting of non–service animals. A Massachusetts state court case, Nason v. Stone Hill Realty Association (Mass. 1996), held that a tenant failed to show a clear nexus between her multiple sclerosis and her need to have a cat, despite her physician’s statement that she would suffer serious negative consequences if deprived of the cat. (The physician’s letter did not sufficiently correlate the tenant’s condition with the presence of the cat.) The court suggested that “chemical therapy” might work as well as a cat.
A question that has arisen occasionally concerns whether a landlord may reject a particular emotional support animal and still make a reasonable accommodation. In Oras v. Housing Authority of the City of Bayonne (373 NJ Super. 302, 861 A.2d 194 (2004)), the court held that a landlord could not impose a 20–pound limit that applied to pets in a public housing authority to prohibit a tenant from keeping a dog that provided emotional support but that happened to weigh more. In an unpublished order from 2002 ( Zatopa v. Lowe), however, the district court for the Northern District of California allowed a landlord to exclude a pit bull mix because of the reputation of pit bulls, despite the fact that testimony regarding the specific dog suggested strongly that it was a gentle animal. The landlord had been willing to accept a “safe and gentle breed,” such as a Cocker Spaniel.
- Most of the people I've rented to who have emotional support animals are dirt poor and are using it to get around paying a deposit and/or pet rent. So I make sure to have rigorous screening that keeps out the people with low income and criminal and eviction histories. When someone does get in make sure to tell them that
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes9y
@Ryan Seib the 2008 material from the DOJ is older. They have added new clarifications. There are Service Animals that are trained to treat mental disorders, including disorders like PTSD. Still the DOJ is clear that Service Animals are different than Emotional Support Animals, which treat a broader spectrum of emotional disorders and have no training.
Most recent HUD statement which includes DOJ/ADA clarifications:
https://portal.hud.gov/hudportal/documents/huddoc?...
https://portal.hud.gov/hudportal/HUD?src=/press/pr...
https://www.ada.gov/service_animals_2010.htm
A good explanation of disorders that Service Animals can be trained to cover:
https://adata.org/publication/service-animals-book...
I am concerned those 15-20 year old court cases may not hold water today. There has been significant clarification over the last few years and more recent court rulings have not been as kind to landlords. An animal could be doctor mandated to treat any psychological condition including depression which 90% of America seems to have. For example someone dealing with MS could benefit from a cat to treat the psychological aspect of the disease. If that case from 1996 went to court today in MA, I doubt the court would rule the same way. The cat didn't treat MS, rather it treated the psychological symptoms.
Looking through cases from the last ten years, landlords have lost on may different grounds:
- Charging a pet fee or requiring pet insurance has been ruled against
https://www.justice.gov/sites/default/files/crt/le...
- HUD violation for refusing to waive a pet fee for veteran who needed an emotional support animal.
http://www.fhanewsblog.com/2017/02/hud-charges-okl...
- Limiting a breed because it is dangerous has been ruled against. Even if the breed is banned in the city, it seems HUD believes you must take it.
- San Francisco, CA · Member since 2017 · 115 posts · 29 votes9yCouldn't an argument be made for if a service animal attacks someone then they are not in fact a service animal...? I'd think it would be on the owner of the service animal or whoever trained the service animal.
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes9y
Originally posted by @Sasha Josephs:
Couldn't an argument be made for if a service animal attacks someone then they are not in fact a service animal...? I'd think it would be on the owner of the service animal or whoever trained the service animal.
Service Animals are highly trained and generally will not attack. It is the Emotional Support Animals that do not have to have training. For example if a tenant got a rescue Pitbull from the shelter that was previously abused or trained to fight, it may be harder to control. It could attack another tenant or neighbor. The owner could would probably be held liable, but that wouldn't prevent someone from suing the landlord. People chase the bigger pocket, so that is probably the landlord and not the tenant. They could argue that you allowed a known dangerous breed into your property. Many insurance companies would not cover a landlord in this case and as a result the landlord could be in deep trouble.
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