Service Animals and Emotional Support Animals in Rental Properties
June 20, 2018
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We all know the dangers: pets can destroy hardwood floors, tear up carpets, frighten neighbors, and cause a regular and disruptive disturbance. For this reason, many landlords choose to prohibit any tenant with a pet from renting their property or unit, and they are entirely justified, both legally and ethically, in doing so. Things become complicated, however, when a prospective tenant has a legitimate medical need. Tenants with service animals and emotional support animals have their own set of laws and restrictions, and while these regulations are not overly complicated, you as a landlord do not want to end up on the wrong side. A basic understanding of the rules governing service animals and emotional support animals in rental properties is essential if you want to avoid any possible discrimination charges. And there is a lot of nuance to consider; for example, what is the difference between a service dog and an emotional support animal? Are public restrictions different than private restrictions? What documentation can you require and what types of questions are you legally permitted to ask? We’ll help you navigate all this and more below.
As a reminder, Innago is not and does not act as legal counsel. If you have a specific question or have come into conflict with a tenant, we strongly recommend you consult a local lawyer.
A Brief History of Service Dogs and Emotional Support Animals
Dogs may have been in service to the blind as early as the first century AD, but the earliest recorded, systematic attempt to train special service animals didn’t come until 1780 at a hospital in Paris. Following World War I, Dr. Gerhard Stalling of Germany created his own dedicated school to train service dogs en masse for returning servicemen in need of visual assistance. His basic techniques were quickly improved upon and modern seeing eye dog schools were born. By 1929, the Seeing Eye School in Morristown, New Jersey had been established, the first of its kind in the United States. In 1990, the Americans with Disabilities Act was signed into law, which, amongst many other purposes, provided broad protection for those in need of a service animal.
In 1976, a nurse named Elaine Smith founded Therapy Dogs International and greatly expanded the use and value of dogs in service to people and helped pave the way to what we now call therapy and emotional support animals (a distinction entirely separate from service animals). Between 1999 and 2012, the number of therapy dogs and emotional support animals registered at animal control facilities in California increased by more than one thousand percent. And the type and use of these animals seems to be ever-expanding, from ducks in the air to pigs on the ground. However, as the popularity and accessibility of service dogs and emotional support animals has increased, the rules, regulations, and definitions surrounding them have become gray.
Definition of a Service Animal
The Americans with Disabilities Act (ADA) narrowly defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities.” This explicitly and importantly does not include any other type of animal, nor does it include “dogs whose sole function is to provide comfort or emotional support.” Thus, service animals (or service dogs as they would more accurately be described) are in a category unto themselves and have added rights and rules restricting how they and their handler can be treated. Notably (and somewhat amusingly) there is one exception to the specificity of this definition: miniature horses. The Code of Federal Regulations Section 36.302(c) applies all rights and responsibilities to include miniature horses if the animal has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
Definition of an Emotional Support Animal
According to the Fair Housing Act (FHA), “An emotional support animal is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship.” An ESA is not trained to perform specific tasks. Its sole job is to provide companionship to its owner for specific medical purposes. A letter from a medical professional is required to demonstrate the animal is medically necessary.
Rights of Service Animals and Emotional Support Animals
According to the ADA, working service animals are permitted to accompany their handler in all public areas without restriction. They must be restrained via leash or harness unless it would interfere with the service they perform. Conversely, and as noted before, emotional support animals fall outside the scope of the ADA. Therefore, they do not have any added rights permitting them in public places.
When it comes to housing and landlords, though, the FHA provides fairly broad coverage. Any animal performing a physical or psychiatric service is protected as a reasonable accommodation to the tenant by the landlord and must, in nearly all cases, be permitted regardless of a property-wide pet policy. The handler must have a verifiable disability, but if they do, a landlord has little recourse.
A Quick Note on Therapy Animals
Due to misinformation and confusing terminology, therapy animals are often conflated with emotional support animals. This is unfortunate. Therapy animals are a class unto themselves, and while they may serve a legitimate medical need, they are not legally defined as servicing a disability and are not protected under the ADA or FHA. A public place may choose to make accommodations for therapy animals, but they are not required. This is true for landlords as well. If your tenant claims their therapy animal is a medical necessity and they therefore are exempt from your pet policy, make sure they are not confusing their jargon. If it is indeed a therapy animal and not an emotional support animal or service animal, you may tell them (with compassion, we would suggest) that they do not have any specialized rights and they are subject to your standard rules.
What Questions and Documentation May a Landlord Ask?
Here’s where thing often get most confusing, so read carefully. For public facilities, the ADA strictly permits only two questions that may be asked of a service animal:
- Is the dog a service animal required because of a disability?
- What work or task has the dog been trained to perform?
That’s it. If the handler can provide an answer to both, the public facility must accept the dog as a service animal. Any questions about the handler’s disability, medical documentation, proof of the animal’s training, or requests for the animal to perform a task would be grounds for a discrimination claim, a potentially costly and lengthy process.
HOWEVER, this does not apply to rental housing. In 2013, HUD amended and revised their assistance animal policy for added clarity. For both service animals and emotional support animals, landlords may request reliable documentation of a disability and the tenant’s disability-related need for an assistance animal. This typically takes the form of a letter written and signed by a medical professional. Landlords may not request any medical records or extensive details regarding the disability in question. A landlord need not be aware of the specifics of the need, just that the need is proven.
What Can I Do If I Think the Tenant is Lying About the Status of Their Animal?
Typically, a trustworthy tenant will be upfront with you about their animal and their status under the FHA. The handlers will be able to answer questions about the specific tasks the dog has been trained to perform and will be prepared with a doctor’s note. If either of these is untrue, you may follow the guidelines set by your policy.
However, some tenants may think they can get around extra pet fees by claiming the animal is there for emotional support or service when they are not. Be wary of certificates purchased online – these do not count – or of letters that do not read as legitimate. If you suspect fabrication by the tenant, look up the doctor in a local database. If the doctor is listed but you believe the tenant simply used the doctor’s information, you may reach out to the doctor via phone or letter yourself, but tread lightly here. You do not want to violate any privacy laws or behave in any way that could be viewed as harassment.
When Can a Landlord Say No to a Service Animal or Emotional Support Animal?
Both service animals and emotional support animals are deemed medically necessary to their handler, and are therefore, in the eyes of the law, treated the same as any medical equipment. Landlords must make reasonable accommodation to these tenants and their animals. Landlords can refuse reasonable accommodation if and only if one of the following is true:
- If the animal poses a threat to the safety of others (an aggressive dog)
- If the animal causes major damage to another person’s property (the building or something owned by another tenant)
- If the accommodation is not reasonable (it creates an undue financial or administrative burden on you the landlord)
If any of the above are true, you may request that the animal be removed from the property. Landlords may not require any additional pet fee or security deposit as part of the rental process.
The definitions, rules, and regulations surrounding service animals and emotional support animals in rental properties can be confusing. Unfortunately for landlords, that confusion can lead to real and expensive legal trouble. It is critical that, when taking adverse action against a potential tenant with a service or emotional support animal, you have a clear understanding of your rights, their rights, and the potential repercussions of your decision. If you do not, or if you have any hesitancy as far as the legitimacy of the tenant’s claim, we strongly suggest you consult a local lawyer specializing in rental housing law.
All of this being said, keep in mind that service dogs and emotional support animals are a huge benefit to their handlers and to society in general. They are typically very well behaved and perform a legitimate medical function. Many disabilities may be indiscernible to a casual observer and the tenant’s service animal may pay a key role in their physical and mental health. Until proven otherwise, it is best to give your tenant the benefit of the doubt and warmly welcome them and their assistance animal into your community.
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