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Rental Housing and Emotional Support Animals: Know the Law

Recently a Delta airlines passenger was attacked by an emotional support dog who was riding in the cabin with its owner.  Airlines are required to board emotional support animals with proper documentation according to the same procedures they have for guide dogs for the blind.

The support animal in question was a 50 pound Labrador-pinscher mix. The dog was sitting on its owner’s lap in the middle seat.  When the passenger occupying the window seat boarded, the dog growled. The dog continued to growl and behave aggressively, until it finally lunged at the passenger’s face.  The passenger had nowhere to go, penned in the window seat. The animal, the owner, and the injured man were taken off the plane, and the injured passenger was taken to a hospital.

Many landlords have clauses in the lease about no pets, or limiting the type of pet.  However, emotional support animals are neither pets nor specifically trained like service dogs, such as seeing-eye dogs. Housing providers are required by federal law to exempt service animals from “no pets” restrictions, or from restrictions on certain breeds and sizes.

An emotional support animal is not the same thing as a service animal.  There is no training required for an emotional support animal.  We’re not just talking about dogs here, either.  Cats, ferrets, rats, parrots, and even pigs and monkeys can be considered emotional support animals. 

So what is a landlord to do? Especially when one of your existing tenants has chosen to live in a pet free environment due to allergies?

The first step is to get informed about the law, at the federal and state level.  The next step is to consult an attorney.

Under the federal Fair Housing Act, you are required to make reasonable accommodations for persons with disabilities. This includes service animals, and emotional support animals. A landlord is exempt only if they own a multifamily dwelling with four or fewer units, one of which they occupy, a single family home where the owner does not use real estate services to buy or rent the property, and the owner owns less than three single family houses; and housing owned by organizations or private clubs that is used for members.

But you also have the right to ask for documentation.  Here’s where it gets crazy.

A landlord has the right to ask that a tenant produce a letter from a licensed mental health professional (ESA letter) attesting to the need for the animal for a disability or medical condition that cannot be seen. Here is the ruling from HUD.. https://www.hud.gov/offices/fheo/FINALRULE/Pet_Ownership_Final_Rule.pdf

A landlord may NOT ask the tenant the nature of their disability, or details of their medical treatment.  A landlord may ask two questions:

  1. Is this a service animal?
  2. What tasks is it trained to perform?”

A landlord cannot ask about how the animal helps.  A landlord cannot request access to medical information or the medical professional.

But the crazy part is that documentation has become an internet industry. Google ESA letter, and you will find many sites offering, for a fee, to send you an ESA letter, allegedly certified by a licensed mental health professional who may look over a questionnaire but has never seen the patient nor actively treated them. Some actually state that they can free you from those pesky rules about no pets, or let fees, or allow you to take your pet aboard aircraft with you.

It pays to scrutinize the ESA letter – it needs to be on the professional’s letterhead, and include their licensing information.

A landlord must make reasonable accomodations.  This means that pet fees, and regulations on size, weight, and breed to not apply.  However, a landlord may be able to prove that the accommodation is beyond reason, such as for an animal that behaves in a threatening manner or interferes with other animals or people or causes the landlord to have unreasonable expenditures. 

It really is best to consult with an attorney concerning the rules in your area for emotional support animals.

By Janet Hill

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