Many of our clients desire tenants that don’t have pets for the obvious perception that pets cause more wear and tear on rental properties, however this is certainly not always the case. Several times every year we encounter prospective tenants with emotional support animals, or people who claim they have emotional support animals. It is both a sensitive and important topic which requires some cursory analysis and something that we cover with our clients during our initial meetings. Believe it or not an emotional support animal is NOT a pet according to the U.S. Department of Housing and Urban Development (HUD) guidelines and the Fair Housing Act (42 U.S.C.A. 3601 et. seq.). Fair Housing guidelines require “reasonable accommodations” be made for persons with disabilities – and an emotional support animal (dog, cat, or other) is a type of assistance animal which meets this definition. HUD is federal agency charged with marshalling the Fair Housing Act and investigates discrimination claims against landlords, property managers, among others. It is of paramount importance that if you are a landlord or have hired a professional property manager to manage your properties that these laws are understood and complied with.
Two Threshold Questions Require “Yes” Answers
When a person requesting a lease for a rental property that has been advertised and placed in the stream of commerce seeks permission to reside with an assistance animal there are only two questions upon which a basis determination can legally be made:
The first question is “does the person seeking to use and live with the assistance animal have a disability – defined as a physical or mental impairment that substantially limits one or more major life activities?” Fair Housing Act, 42 U.S.C.A. 3601 et. seq.
The second question is “does the person making the request have a disability-related need for an assistance animal?” For further definition and clarification, does the animal work, aid, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? Fair Housing Act, 42 U.S.C.A. 3601 et. seq.
A “yes” answer is required to both questions for a landlord to be required to lease a property to a person with an assistance animal. To clarify, the emotional support animal must alleviate, help or assist some major symptom of the disability.
Not All Disabilities Apply to Emotional Support Animals
Some of the infirmities that emotional support animals assist with include but are not limited to persons with severe depression, persons with post-traumatic stress disorder, and persons with generalized anxiety disorder, among others. A catch-all phrase utilized in the statute states assistance animals can “provide emotional support to persons with disabilities who have a disability related need for such support or a person with a mental or psychiatric disability.”
Burden of Proof is on the Disabled Person to Show Infirmity
It is incumbent on the person seeking to reside with an emotional support animal to submit reliable documentation of the need and/or the disability such that the landlord or property manager is on notice. This is especially important when the disability is not readily apparent from outward appearances. A doctor or therapist or other medical professional who is treating the disabled person can submit correspondence to corroborate the infirmity. A landlord or property manager is not legally allowed to ask to see or review medical records for privacy reasons, nor may they unreasonably delay a decision on the lease.
Decisions on Support Animals are Evaluated and Made on a Case-by-Case Basis
There can not be general denials of animals based on breeds or species of animal. Each situation is different and requires individual attention and investigation. If an animal poses a direct threat of harm or may cause substantial property damage a landlord may deny the request. The burden of proof is on the landlord to make a showing that they are not being discriminatory. Additionally, once an animal has been accepted the landlord can not charge a “pet deposit,” unlike a typical household pet.
Failure to allow an emotional support animal or make reasonable accommodations is a violation of the Fair Housing Act, unless the landlord can prove the situation would be an undue financial burden on the landlord or require a significant or fundamental alteration of the property.
Service Animals are Not Emotional Support Animals
Animals, and in particular dogs, that are trained to do work or tasks for people with disabilities like pulling a wheelchair, guiding a blind person, and/or alerting a person with a seizure (among other things) are typically called service animals. Service animals are allowed to go inside buildings and public places including state and federal buildings, public transportation, and non-profit organizations open to the public.
Animals that provide therapeutic support to its owner through companionship is an emotional support animal – typically support and comfort to people with psychiatric or other mental disabilities are covered. Emotional support animals are not typically trained in any area of support or special skills. Emotional support animals are not afforded access to public and government buildings like service animals.
Any Animals that Cause Damage to Leased Property Will Require Repairs or Payment
Even though special rules apply to both service and emotional support animals they will treated the same as typical household pets when it comes to property damage beyond the typical wear and tear. The key determination is that the landlord or property had rules in place that apply to all animals equally and does not unfairly treat one type of animal any differently that the others. Importantly, since there is no pet deposit for an emotional support animal special care must be undertaken to make sure the property damage can be repaired with the tenant’s security deposit before it is returned within 21 days of termination of the tenancy.
Conclusion – Important to Understand the Law of Support Animals
There are many different rules and details that landlords and property managers must be aware relating to emotional support animals as compared with a typical household pet. It is imperative that landlords and property managers who lease or rent properties to others are knowledgeable of the nuances and particulars of this area of landlord-tenant law. Without knowledge a leasing professional could make a mistake, or worse, a discriminatory determination and find themselves the recipient of a HUD complaint and fine. Esquire Property Management Group is owned and operated by David Roberson, a real estate attorney versed in this area of the law. Please reach out to David for further questions relating to this area of the law.
David currently is the broker/owner of several real estate related businesses which manage and maintain 300+ client properties on the San Francisco Peninsula.
Trust, transparency, and performance guarantees are the foundation of these businesses. David challenges anyone to find a PM professional that offers services similar - extensive education, customer service, and performance guarantees.
David also provides consulting for his clients on property development feasibility, construction, and complex real estate transactions.
David has authored a published law review article, two real estate books, and over 120 real estate blog articles.
- What is Driving the Growing Demand for Enhanced Electrical Capacity in Residential and Commercial Buildings? - November 25, 2024
- What Are All the Legal Tax Deductions in Commercial Real Estate (CRE)? - November 17, 2024
- What are Typical Commercial Property Management Fees? - November 15, 2024
