Landlord's Rights Regarding Emotional Support Animals
5 min read
ESAs have been a hot topic lately. Not exclusively for good reasons, as stories about cute animals, alleged foul play and ridiculous legal quagmires bring the currency most priced by the media — attention. Let’s try to untangle this knot together, and figure out what rights does a landlord have in relationship with an ESA owner; what laws are they are subject to when it comes to tenants with ESA’s; what the general process is. Let’s address it in great detail.
Emotional support animals are animals that are prescribed by mental health professionals to patients as treatment. And it has proven itself as an effective supplemental therapy, or even as the therapy itself in some cases. Unlike service animals, ESAs have no restrictions on species or breed of animals, no special training and don’t require any certification. There is also no hard limit on how many ESAs a person can have.
Because carrying the burden of a mental condition is considered a disability, laws like the Federal Housing Act (FHAct), and Section 504 of the Rehabilitation Act of 1973 give emotional support animals the level of protection, similar to the one that is applied to service animals like guide dogs.
Exemptions from housing discrimination laws
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Landlords cannot discriminate against tenants with disabilities, either physical or emotional
Most landlords are subject to the aforementioned laws; thus, they can’t discriminate against tenants based on disability and are obliged to provide reasonable accommodation to their needs such as ESAs. But first, let’s address the cases when they don’t.
Sec 504 only applies to housing and housing programs that have some government funding behind it. That can be a federal program or grants like it's the case with homeless, relocation or low-income housing ventures. So, all privately funded ventures are exempt.
FHAct has a wider and more elaborate list of exemptions that may differ from state to state. It generally includes inherently discriminatory dwellings like elderly or veteran housing, club, and church housing, as there have been previously reported cases of them discriminating based on age or veteran status.
Also, some small scale ranting is exempt. Namely, a property divided into four or fewer units where a landlord occupies one of the units, or a single-family house, as long as it is rented out without the help of advertisement, broker, manager, and a landlord doesn’t own more than 4 of them.
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What landlord can say or cannot say when an ESA owner is applying for a rent
Landlord does not have a right to know the character of your disability
You cannot inquire about a person’s disability directly, be it physical or mental. There are other questions you are allowed to ask: do they have a substance abuse problem or whether they can meet tenancy requirements.
If a person applies for rent with an animal, you can ask whether an animal is a service animal. Is it a service animal or an ESA? If so, what function does it provide? You can infer from there. They don’t have to provide you any documents proving their disability yet.
As a landlord, you have a right to deny a tenant, as long as it’s not based on a specific person's disability. Otherwise, you might find yourself in for trouble: a long mediation process from a local human rights commission or the HUD after which you would have to accept an application anyway, a hefty fine (up to $64,000) or even discrimination charges in court.
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So, the tenants can claim that they need an ESA without any proof?
To prove your status, you need to provide a valid ESA letter
Not quite so. After they ask to accommodate an ESA, they have to provide a document, proving that they actually require one. This document is known as the ESA letter. Simply put, it's a letter from a licensed psychiatrist, general physician, mental health counselor or a mental health social worker. That document has to state that a tenant has a recognized mental health disorder, that can be unspecified in the document for the purposes of medical privacy. It also has to mention that they are in care for it and that they require an ESA for the treatment. It should be signed by a mental health professional or by his PA, in some cases. This document is valid for one year since signed.
If you have any doubt in the validity of the letter, feel free to check the specialist’s credentials, whether they are licensed in your state (as they must in most cases). You can contact them to make sure that this document isn’t a forgery. Note that it might not be a foul on their part. There are a lot of websites and blogs that spread misinformation and sell forgeries to unsuspecting customers.
Reasonable and unreasonable accomodations
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Select the type of accomodation considering the size and breed of your ESA
We’ve mentioned that you have to provide reasonable accommodations. In regard to emotional support animals, that includes such things as waiving ‘no pets’ policy, pet fee or deposit. A landlord should also allow for limited modifications to the property (this includes modifications needed for an ESA). But is there such a thing as an unreasonable accommodation request? Yes, yes there is.
First, it needs to be said, that what request for accommodation request is determined by the HUD past on their internal policy, this policy is informed by law, court precedent, and hopefully, common sense. There is no 100% certainty in knowing what they would deem reasonable or not. However, they have some general guidelines for landlords and tenants.
- If an owner fails to look after an ESA, it might be a ground for denial of a support animal accommodation request or even eviction if it’s a case of severe neglect or abuse of an animal by that person.
- If an animal is aggressive or poses a threat to a landlord or other tenants. Note that it can't be a perceived threat related to animal species or breed, but rather a pattern of behavior or personal history of attacks. It doesn’t necessarily have to be violent attacks, actually. For instance, if an ESA is a cat and one of the other tenants have a cat allergy, it might be denied.
- If accommodating an ESA would require a drastic modification to the property that would change or hamper its purpose. For instance, if a tenant wants to keep an alligator in a common pool or turn a garage into a stable for an ESA horse.
- If keeping an animal would pose undue financial harm on a landlord. For instance, when an insurance company would raise rates on the property. Like it’s often the case with large or exotic animals.
Should any of these concerns arise, contact the HUD or your local human rights commission, in case your local law is applicable to ESAs.
Overall, ESAs enjoy broad protections under the law with some caveats to weed out ridiculous staff. And the benefits of having one doesn’t end on rental housing. Emotional support animals can fly with their owners free of charge in an airplane cabin; having an ESA dog might bypass some local restrictions on dog’s breed or size, and most important of all they give their love and solace to their owners. So, you might consider having one regardless of owning any property. If so, contact us, as we try to provide the best service when it comes to ESA acquisition.