Pets cause more wear and tear on your property. They can be loud, messy, and add friction with the neighbors.
As a landlord you have the right to allow or prohibit pets in your rental units. Normally, it constitutes a business decision: do the pros of accepting pets outweigh the cons?
But tenants with certain types of support animals get additional rights under federal Fair Housing laws. Service animals, such as seeing eye dogs, make a clear cut example. But what about emotional support animals (ESAs)? What are your rights and obligations under the Fair Housing Act?
The Limitations of No-Pets Policies
Landlords usually — and should — include pet policies in their leasing contracts.
These include whether animals are allowed at all, how many animals, and any restrictions regarding the type of pet. For instance, you as the landlord can allow dogs or cats but prohibit pet pigs. If the tenant violates the terms of the lease clause, you can file for eviction.
Simple enough, for the average tenant who sneaks in a pet wombat. But what if the tenant claims their pet as a service animal or an emotional support animal?
What’s the Difference Between a Service Animal and an Emotional Support Animal?
A service animal provides tangible aid and true service to someone with a physical disability. A common example of a service animal would be a guide dog for a blind individual. These animals — usually dogs — receive extensive training, and are sometimes certified as service animals. (Although as one reader pointed out, these certifications are not centralized or reviewed by any governing body, and can be bought online for a few dollars.)
Emotional support animals fall under a much broader, blurrier definition. An emotional support animal could be any animal that provides emotional or physical support to someone with a special need.
These animals do not necessarily receive any training or have to be certified in any way. Additionally, they could theoretically be any species. An emotional support animal could indeed be a dog or a cat, but may also include birds, fish, rodents, pigs — you name it!
Questions to Ask When Screening Emotional Support Animals
Generally speaking, renters with emotional support animals get the same protections as physically disabled people with trained, certified service animals.
Landlords do, however, have the right to ask questions of applicants with an emotional support animal. While you cannot deny a rental application because they own a support animal, or tell a tenant that they cannot bring the animal into your rental property, you can ask these three questions prior to adjusting any lease clauses in your rental agreement.
1. Does the tenant have a disability?
A physical or mental disability is included in Section 504 of the Rehabilitation Act of 1973 (more on Section 504 & Fair Housing laws shortly). It is described as an impairment that affects one’s life activities such walking, self care, hearing, or sight. Impairments include but are not limited to blindness, deafness, depression, or any deadly illness.
You as the landlord can and should ask for legal documentation of a disability, without necessarily requiring details of the disability. This reduces the subjectivity of a potential tenant’s need for an emotional support animal.
2. Does the animal alleviate or assist with this disability?
As well as legal documentation of the disability itself, the tenant should also provide medical confirmation that the animal does indeed assist with the physical or emotional impairment. If the tenant does not have legal or medical documentation describing their need for the animal, you then have the right to deny their rental application or their pet.
3. Is the request reasonable?
A request is considered reasonable if the tenant is not imposing a financial burden on the landlord. If the animal requires any housing construction or remodeling, this will cause financial stress on the landlord.
When Landlords Can Reject an Applicant with an ESA
Even though landlords are usually legally required to allow any emotional support animal, there are circumstances that allow for rejection of the animal. Examples include:
- Smaller multiunit (2-4 unit) buildings where one of the units is occupied by the owner (e.g. multifamily house hacking landlords).
- Single-family homes rented without a real estate agent, by landlords owning three or fewer single-family rentals.
- If the size of the animal is not compatible with the size of the property.
- If the request becomes financially unreasonable for the landlord to make the accommodations for the emotional support animal.
- If the animal is considered potentially dangerous to other tenants living in the same building or complex.
- If the tenant does not meet all the typical tenant screening qualifications required before signing a lease agreement. Usually these would include credit, criminal, and eviction histories, income, rent payment history, and beyond.
Disruptive Emotional Support Animals
Just because a tenant has an emotional support animal doesn’t mean the rules don’t apply to them. The last thing you or the other tenants want is to hear an emotional support canary singing at 3am.
If the animal is or becomes disruptive at any time, you can suggest training or behavior lessons before filing for eviction. Landlords can file for eviction if the animal continues to be disruptive or dangerous.
How to Handle Tenants Scamming Fair Housing Laws
In a perfect world, no one would abuse laws designed to protect the disabled.
Unfortunately, there are plenty of renters who don’t suffer from a disability who take advantage of Fair Housing laws to game the system. Scamming websites offer fake certifications or documentations stating that the animal is a service animal, when in reality it is not.
Don’t expect much in the way of legal protections against these scammers. If you asked the tenant screening questions outlined above, and the tenant and animal meet the qualifications, you have little choice in the matter. You cannot reject their rental application because of the animal, and must allow it to live in the unit at no extra charge. Otherwise, you face Fair Housing lawsuits over discrimination.
Can Landlords Charge a Fee for Emotional Support Animals?
In short, no. Since emotional support animals are not considered pets, you cannot charge an additional pet fee, refundable pet deposit, or ongoing pet rent to the tenant.
However, if the animal causes any damage or harm to the property, you can deduct that amount from the initial security deposit. Make sure that within the lease contract, the tenant is fully aware of their responsibility regarding damage done to the unit by the animal.
Fair Housing Act Section 504 & Emotional Support Animals
The Fair Housing Act was created to ensure equal housing opportunity for all tenants and homebuyers, and to prevent discriminatory practices. This includes imposing different prices based on gender, religion, race, nationality, disabilities, or special needs.
Due to the Federal Fair Housing Act, tenants have the right to have an emotional support animal as they are considered an appropriate accommodation for those with special needs. Appropriate or reasonable accommodations include simply allowing the tenant to keep the pet. This does not mean the landlord is financially responsible for any property modifications, such as the removal of a wall.
Final Thoughts
Landlords are legally required to allow and accept emotional support animals or service animals.
However, you are also protected by law if the request is unreasonable, the animal is disruptive, or if the tenant is a scammer. Handle rental applications that include emotional support animals with kid gloves, knowing that you risk a Fair Housing lawsuit if you overstep the line.
by Emma Dudley
