The life-saving tasks a trained service animal can perform are remarkable! Service animals have been known to predict impending seizures, perform complex household tasks, protect their companions from oncoming traffic and even provide a calming influence for suffers of autism or post-traumatic stress disorder. Registered service animals, as defined by the Americans with Disabilities Act, or ADA, are limited to canines and miniature horses and are required to have rigorous training to qualify for a service role.
In contrast, emotional support animals, or ESAs, may be untrained members of almost any animal species who are said to provide some therapeutic benefit to their human companions. Applications for ESA certifications are up about 279% since 2011, showing the huge increase in this trend.
How exactly does an ESA differ from a registered service animal? And for a landlord faced with a prospective renter demanding tenant rights to fair housing; what reasonable requirements are necessary under the ADA and the Fair Housing Act? This is the question!
Service animal or emotional support animal:
The difference between a service animal and an emotional support animal is training. A service animal must undergo a lengthy preparation and evaluation process, while an ESA does not require a single day of doggie school and does not even need to be a dog.
According to the ADA, service animals are defined as “dogs that are individually trained to do work or perform tasks for people with disabilities. The emphasis here is on the word “trained”. This training typically begins in puppyhood and lasts two years or more.
After completion of training, the animal must also be certified by the state regulatory agency. Then the animal is granted “public access” and “state and local governments, businesses and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go”.
GRAY AREA: Assistance animals
The Federal Housing Administration has a more inclusive definition of service animals and refers to “assistance animals”. As a Landlord, you should understand this definition, because penalties for refusing access to a real assistance animal can be extreme. In general, you must make reasonable accommodations for an assistance animal even if your property maintains a no-pets policy!
Unlike the definition with the ADA, an assistance animal does NOT have to be trained for a particular set of tasks as long as the animal “works, provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.
Emotional support animals:
An emotional support animal, as traditionally regarded within the service animal community, is an animal without specialized training that serves as a companion for someone suffering from certain mental health disorders, including anxiety and depression. This term is not recognized by the ADA and is only vaguely mentioned in some interpretations of the Fair Housing Act.
However, the “emotional support” referred to in the ADA-approved definition above pertains to mental health assistance provided by the animal to an owner suffering from the emotional side effects of an underlying recognized disability, including PTSD or autism.
Landlord’s responsibilities and obligations:
Now to the part that all Landlords will perk up their ears for……..The Department of Housing and Urban Development has issued several interpretive statements regarding a landlords duties with regard to renters seeking accommodation for an assistance animal.
First, you may NOT ask for documentation if the disability is obvious or apparent. If the disability is not obvious, you can only ask these two questions:
- Does the applicant have a disability as defined by the ADA?
- Does the applicant have a disability-related need for an assistance animal?
If the answer to either of the above questions is “no”, you are within your rights to deny the request for a waiver of your no-pets policy. In making that decision, you can request medical documentation from a licensed doctor indicating the applicant does suffer from a disability, but you CANNOT ask to review the applicant’s medical records.
- To obtain certification as an ESA, which is a very unregulated frontier, an owner need NOT suffer from an underlying disability as long as he experiences regular bouts of anxiety or emotional instability.
- Under Federal law, you do NOT have to permit emotional support animals for everyone with a mental illness, only those who are disabled AND have a mental illness. The mental illness must in some way be directly related to the disability. This can vary from state to state.
- For emotional support animals, you only need to make a reasonable accommodation if the support is needed to relieve the effects of a pre-existing disability. Emotional support animals that only serve to make the tenant more comfortable, alleviate stress or lessen anxiety symptoms may be excluded, if the tenant is not actually suffering from a documented disability.
- You MUST accommodate a support animal, even IF untrained, that provides stability for a tenant with a documented mental or psychiatric disability.
You cannot impose weight or size restriction on an assistance animal, provided the animal can be kept on the property without reducing the property value or creating undue financial hardship. Typically, a landlord would have a difficult time establishing an undue financial hardship.
It is generally accepted that you can collect a Pet Deposit for an emotional support animal and require that the animal be spayed or neutered, but if the pet is a “service animal”, you cannot charge a Pet Deposit.
A true emotional support animal has been prescribed by a physician and a letter should be easy for the tenant to provide.
If you have questions, consult a legal professional for advice. This article is for informational purposes only and is not legal advice.
This an emerging issue for Landlords and there are many court cases already. Bottom line…..This is just beginning and it’s best to be very careful with this new issue!