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As the willingness of doctors to prescribe emotional support animals (ESA) continues to increase, landlords are struggling to understand the emotional support animal housing laws. Navigating how to protect your property against damage, handling threats ESAs can have to other tenants, and the confusion between emotional support animals vs traditional service animals has never been more complicated.
Questions a landlord might ask:
Do I have to accept emotional support animal in my rental?
What fees can I charge?
Which questions can I ask about a tenant’s need for an ESA?
What proof can I require that my tenant is eligible for an emotional support animal?
Is an ESA a service animal, and what are the differences?
This article will help sort through common questions and outline your responsibilities and rights when renting to someone with an emotional support animal.
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Service vs Emotional Support Animal Housing Laws
It is easy to confuse emotional support animals with service animals, however there are some key differences between the two. One of the main differences revolves around specified training that the animal has received.
Emotional Support Animals
Emotional support animals do not need any specific training, and don’t usually have any. Their primary function is to provide companionship, emotional support, or assistance to those with a disability as defined by a tenant’s licensed health care provider. Those prescribed ESA could suffer from anxiety, depression, or PTSD for example.
Emotional support animal housing laws are narrow and do not extend to legal protections in businesses, places of work, or transportation facilities.
Service Animals
Conversely, service animals do in fact receive special training to perform tasks for their owners that would not be able to perform those same tasks on their own.
Think of service animals the same way you would a necessary medical device such as a wheelchair or prosthetic limb. For example, epileptics often have dogs trained to sense an oncoming seizure, before their owner is aware one is about to happen. Service animals also help a variety of people who do not have physical disabilities. They also perform essential functions for individuals with mental or emotional disabilities as well.
Contrary to popular belief service animals do not have to be certified or registered, although many owners choose to do so. The Americans With Disabilities Act (ADA) also does not require owners to provide proof that a service animal has been formally certified, trained, or licensed.
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How to Verify a Tenant with an Emotional Support Animal
Potential tenants applying to rent from you that have an emotional support animal must be able to provide proof that the animal has been prescribed appropriately. Emotional support animals are prescribed by medical or mental health care professionals in most cases. Given appropriate proof you cannot disqualify a tenant from renting from you simply because they have an emotional support animal. Consequently, this applies even if you have a no-pets policy.
Emotional Support Animal Letter
In most cases, a tenant provides an “Emotional Support Animal Letter” to their landlord as means of demonstrating their disability, and the disability-related need for a support animal.
An ESA letter is a signed statement from the tenant’s doctor, psychologist, social worker, or other medical professional or reliable third-party.
A landlord may require documentation, in writing that:
The tenant or a member of his or her family is a person with a disability.
The need for the animal to assist the person with that specific disability.
The animal actually assists the person with a disability.
HUD does not specify or limit the disabilities that apply to emotional support animal housing laws, and landlords may not inquire about the existence or severity of a tenant’s disability.
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Understanding Emotional Support Housing Laws
Emotional support animal housing laws, along with those addressing service animals, provide tenants with certain rights and protections that you need to consider as a landlord. It is important to know what actions you can take when renting to a tenant with an emotional support or service animal and which you cannot.
6 Things You Should NOT Do:
Renting to a tenant with an emotional support animal can be complex and stressful, and it’s important to know the actions you should avoid taking and questions you should avoid asking.
1. Ask questions about a person’s disability
As we’ve discussed above, regarding ESA verification, landlords may not request medical records or details on the nature or severity of a tenant’s disability. See below for questions a landlord may ask.
2. Require Registration
There is no formal registration or certification process for ESA.
3. Claim “Undue Burden” Except In Extreme Cases
Our research suggests that courts will use a high bar when landlords claim that accepting an ESA will cause them undue financial or administrative burden.
We suggest accommodating all reasonable requests, in order to make housing available people who need it, and to avoid the possibility of a legal dispute.
Animal restrictions placed by a landlord’s insurance carrier are not always cause for denying an ESA. Some insurance companies may have exceptions for ESA and service dogs.
Unless a fellow tenant has a documented allergy, an ESA cannot be excluded based on allergies.
4. Charge Pet Rents, Fees, Or Deposits
FHA regulations prohibit landlords from charging increased rent or requiring any sort of deposit for tenants having emotional support animals.
5. Treat ESA as Pets
Emotional support animal housing laws dictate that normal pet rules may not be applied.
Emotional support animals are not subject to no-pet policies, breed restrictions, and size restrictions
6. Require Training
For starters, landlords cannot require an emotional support animal to have any specific type of training.
Avoid asking for any sort of evidence related to the animal’s training such as a training certification or license..
6 Things You SHOULD Do:
Following are some best practices when dealing with emotional support animal housing laws:
1. Require an emotional support animal letter
It is within your rights to require this statement before offering housing to a prospective tenant. Essentially this document is verification from an appropriate medical authority, answering the two questions above.
Some owners have a form of their own, which they require be completed by a medical professional. Whether you’re using your own form, or wanting to ask questions of the professional directly, we recommend consulting a lawyer to make sure you’re legally in the clear.
Jump up here for a full description of an emotional support animal letter.
2. Document owner responsibilities
Both service and emotional support animals must be under the control of their owner at all times, whether that be on a leash or tether, or by voice command.
Care, supervision, and cleanup are the responsibility of the emotional support animal’s owner.
Emotional support animals must also be housebroken.
Note: A pet addendum is an important tool when allowing animals in your rentals. For instance, starting with a form such as the one RocketLawyer provides and adapting for emotional support animals could help communicate a tenant’s responsibilities. We recommend using a form such as this form for all animals in your rentals.
3. Request vaccination records
Landlords have the right to request veterinary records demonstrating that an ESA has been vaccinated and is not a danger to people or pets around them.
4. Consider these two questions:
“Does the person seeking to use and live with the animal have a defined disability?” I.E., a physical or mental impairment that substantially limits one or more major life activities.
“Does the person making the request have a disability-related need for an assistance animal? Is the animal working, providing assistance, performing tasks, or giving emotional support that alleviates one or more of the identified symptoms or effects of that person’s disability?”
5. Protect your property from damage with a Move-In Move-Out Condition Checklist
Owners are responsible for the damage their emotional support animals do to your rental property.
Make sure to use a thorough move-in / move-out checklist to clearly demonstrate the condition of the property before the animal lived there, and after.
Take photos and videos as visual documentation or look into one of the inspection apps that are now available. We recommend this practice for all tenancies and especially where there is an animal in the unit.
6. Communicate with empathy and openness
Communicate in a respectful manner and understand that emotional support animals provide real relief to people with a wide range of emotional and psychological disabilities, many of which are not obvious to the casual observer.
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Emotional Support Animals: Species & Breeds
Keep an open mind and remember that ESA do not have to be of any specific breed or variety.
Miniature horses, pigs, turtles, and even llamas can be valid emotional support animals. Other unique breeds have come to include kangaroos, peacocks, and squirrels.
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Exemptions To Emotional Support Animal Housing Laws
There are two conditions which exempt landlords from their requirement to accept emotional support animals:
The subject property has 1-4 units and one is owner-occupied.
The rental is a single-family home rented out without the services of a realtor. In addition, the owner of the home must not own more than three single-family homes.
If your building does not fit into one of these categories, that means you must provide reasonable accommodations to those tenants with emotional support animals, giving them equal opportunity to use and enjoy the property.
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Valid Reasons To Deny Tenants with Emotional Support Animals
In some ways, it may seem that tenants hold all the power with respect to emotional support animals. In actuality, there are many acceptable reasons to deny a tenant with emotional support animal housing.
You can deny a tenant with an emotional support animal housing if:
They are unable to provide sufficient documentation, such as the emotional support animal letter, that verifies the ESA is necessary for their health and well-being.
The tenant provides fraudulent documentation attesting to their need for an emotional support animal (usually a fake emotional support animal letter).
The landlord can demonstrate that making accommodations for an ESA would impose undue financial burden or logistical burden. (Careful with this one! The hardship necessary to qualify must be significant and provable.)
In the case of an illegal breed… maybe. Some cities and states have “Breed-Specific Legislation” which makes it legal to exclude certain species or breeds of animals. Our research suggests that FHA laws supersede local regulations. If you come across this situation make sure to talk to local attorney so that you understand your responsibilities in your location.
The animal is destructive to the property or displays threatening behaviors that could put other tenants or yourself at risk.
The size or nature of the animal makes it impossible to house safely our humanely. (We’d certainly seek counsel if a tenant showed up with an alligator or cow, for example.)
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Landlord Gurus Take-Away
Emotional support animals have increased in popularity over the last decade, and there is ample evidence that they provide valuable emotional and psychological support to those with disabilities. In 2011, for example, the National Service Animal Registry listed nearly 2,400 registered emotional support animals and service animals combined. At this point that number sits closer to 200,000.
Landlords need to understand how to handle tenants with these types of companions. Above all, it is important to understand that emotional support animal housing laws are not the same as those relating to pets or service animals. You cannot discriminate against people that own an emotional support animal, but as a landlord you do still have rights. Tenants must be able to provide a valid emotional support animal letter, for example. Landlords are not required to provide housing if an ESA is destructive, threatening, or cannot reasonably be housed humanely due to its weight or size. Furthermore, owners are liable for damages caused by their animals, just as any other tenants would be.
In conclusion, knowing your rights and responsibilities under emotional support animal laws is now more important than ever. If you have any questions or experiences you’d like to share on this topic, please feel free to contact us!
Photos by Stephen Andrews on Unsplash & Philippe Oursel @ Unsplash.com