Archive for the ‘Housing’ Category

The Federal Fair Housing Act does not allow landlords to discriminate based on disability. However, the scenarios surrounding this law may not appear cut and dry; each situation can look different. Therefore it is essential to look at every scenario individually and take action accordingly. 

Seeking a Home with a Service Animal

Let’s go over a common event when landlords accept service animals but still require a pet security deposit.

Typically, a landlord —or their designee—schedules a rental unit showing with a prospective tenant. When the tenant attends the showing, she brings her Golden Retriever with her. She discloses that her dog is trained to monitor her for impending seizures. The landlord happily approves the tenant for the rental. However, the landlord also expects a pet security deposit, to ensure that the unit remains in good condition. The landlord states that they can offer her 20% off the usual pet fee and pet security deposit because her dog is a service dog. 

1. What Does the Federal Fair Housing Act Say?

Does the pet fee and pet security deposit request, even at a discounted rate, violate the Federal Fair Housing Act? 

According to the Federal Fair Housing Act, a landlord discriminates against a disability if the landlord refuses to provide “reasonable accommodation.” This means an individual with a disability should have the same opportunities to live within a rental as a person without a disability. 

Since the service animal performs a specific task required for a disability, the Golden Retriever is more than a pet. The dog is a service animal and a necessity for its owner. Therefore, the pet fee and pet security deposit do not apply to service animals. 

2. How Does a Service Animal Relate to a Person’s Disability?

People often forget that although a service animal is an animal, it’s much more than that. The service animal helps fulfill a specific task that an individual with a disability needs for safety or for daily life. A service animal is a critical medical tool to overcome a disability. To charge an additional fee for the service animal would be like charging an individual for using a cane or a wheelchair—the service dog is a vital “tool” to the owner to overcome the disadvantages of their disability.

Charging a pet security fee or a pet deposit for a service animal is unethical and illegal. 

3. Who Pays for Damages? 

Does this mean that a person with a disability would never need to pay for damages incurred by their service animal?

Of course, they do. No matter how well-trained a service animal is, they’re still animals. Accidents happen. If the rental property sustains damages from a service animal, then the fees would come out of the usual security deposit or need to be paid for by the owner of the service animal. 

A pet security deposit cannot be demanded because of the service animal. Instead, any service animal damages—aside from usual wear and tear—would be treated like any others would. The only difference is that the damage would be classified as done by the owner, not charged as damages done by a pet. 

However, if a service animal owner fails to demonstrably care for their animal—fails to toilet them properly or keep them clean—then the issue can be reported as a situation of animal neglect.

It’s always essential, in any residence, for service animal owners to care for their pets well and respect the rights of others around them. 

4. What If the Landlord Does Not Allow Pets At All?

If a landlord doesn’t allow pets, can a service animal still reside in the rental unit?

Yes! Remember, service animals are more than pets. A legitimate service animal is part of an individual’s treatment and care, they are considered a medical tool to assist in a person’s disability. By law service animals are allowed in residences and most anywhere their handler wants to take them. According to the Animal Legal and Historical Center, landlords may not ask for medical records, a doctor’s note, or prohibit an animal due to species or breed.

Be a Good Service Animal Owner

Each service animal owner is a representative of other owners, so it’s essential to approach disagreements responsibly and respectfully. Prepare yourself beforehand. Gather your documentation and have your questions and answers ready before seeking rental housing or engaging in disputes. 

Most landlords will be aware of service animal laws and readily accommodate them. For others, they may only see animals as pets. These landlords may benefit from a referral to Federal Fair Housing and Americans with Disabilities Act laws. Service animals are much more than pets—they’re a vital intervention for a disability. 

According to the NAMI, an estimate of 61.5 million Americans (or 1 in 4) suffer from a mental or emotional disability.

For this reason, the use of Emotional Support Animals (ESA) is becoming more prevalent, and many mental health professionals are recommending animals and writing prescriptions as a therapy tool.

As a landlord or property owner, you might ask yourself, what does that mean for me and for my rental units that have “no pets” policies in place?

In this post, we will cover landlord rights when renting to a tenant with an emotional support animal.

Table of Contents The Fair Housing Act (FHA) & Landlords Emotional Support Animal Letters for Housing How Can a Landlord Verify an ESA Letter? ESA Questions a Landlord Has the Right to Ask a Tenant ESA Questions a Landlord Does Not Have the Right to Ask a Tenant What Kind of Animals Do Landlords Have to Allow? How Many Emotional Support Animals Do Landlords Have to Allow? Where is the Emotional Support Animal Allowed? When Can a Landlord Deny an Emotional Support Animal? What About Insurance for Banned Breeds? When Can a Landlord Evict a Tenant With an ESA? What Fees (If Any) Can a Landlord Charge for an ESA? What Could Happen if a Landlord Denies a Tenant Based on an ESA? The Fair Housing Act (FHA) & Landlords

Under the Fair Housing Act, it is against the law for a property owner or landlord to refuse to house those with a disability.

The housing provider also cannot impose a different application or qualification criteria to those with disabilities. This means the rental fees, sales price, or rental terms or conditions cannot differ from those required by non-disabled persons.

However, the FHA does require written documentation or ESA letter from a licensed mental health professional attesting to the tenant’s need for an Emotional Support Animal. Simply having an ESA registration or vest is not enough to qualify an animal as an ESA.

Emotional Support Animal Letters for Housing

You may or may not have encountered an Emotional Support Animal Letter – these are validation letters from a licensed mental health professional telling you the renter has been prescribed the animal for mental health-related purposes.

This animal is NOT a pet but is there to give the needed therapy the person requires – the emotional support animal or ESA must be responsible for alleviating at least one identified symptoms or effects of an existing disability. This does not mean the animal simply makes the person “feel good.” The ESA must be there for a diagnosable condition such as depression, severe anxiety or phobia.

How Can a Landlord Verify an ESA Letter?

As a landlord, you do have the right to verify that the letter from the therapist is real and from a therapist that is licensed. To do this, you will need to check that the letter is written on the mental health professional’s letterhead, along with their contact information (phone number, email address, practice address).

An ESA Letter should include the professional’s license number, date it was issued, and signature.

If you have any concerns about the validity of the letter, you should NOT contact the mental health professional directly. This could be considered a violation of the patient’s right to privacy.

Questions a Landlord Has the Right to Ask a Tenant That Needs an Emotional Support Animal

As a landlord you have the right to ask your tenant the following questions about their emotional support animal. Remember how you ask is important as well. Here are some tips for speaking with your tenant about their Emotional Support Animal.

Tip 1: Politely speak to the tenant about your concerns.

Let them know you would like to work together to alleviate your concerns. Arguing with the person can make them feel discriminated against and can be used against you should the case go in front of a judge.

Tip 2: Verify the licensed mental health professional’s license number.

You do have the right to verify the mental health professional’s credentials. You can do this by visiting the listed state’s website for the mental health professional’s licensure and entering their license number. You cannot repeatedly call or their LMHP or ask them details about their client’s disability.

Tip 3: Ask tenant for a Reasonable Accommodation Form.

As a landlord, you have the right to ask your tenant for a Reasonable Accommodation Form which would be filled out by the mental health professional that wrote the letter.

Questions a Landlord Does Not Have the Right to Ask a Tenant That Needs an Emotional Support Animal

Remember, you cannot contact the tenant’s therapist directly. There are also limits to the questions you are permitted to ask.

There are several common questions that go against the disabled person’s rights and should not be asked, examples include:

“Do you have a disability and how severe is it?” “How long have you been in therapy?” “What medications (if any) do you take?” “Let me see your medical records?” “Have you ever been hospitalized because of a mental disability?” “Have you ever been in a drug rehabilitation program?” “How many sessions have you had with your therapist?” “Is there anything else at all about your symptoms or diagnosis besides what is provided in this letter?” What Kind of Animals Do Landlords Have to Allow?

Although dogs and cats are the most common animals used for therapy, your tenant has the right to possess just about any animal as an emotional support animal.

However, that does not mean you have to allow a pet tiger or full-grown horse inside your building. Animals that pose a danger to other tenants or causes an undue financial burden to you can be denied.

Remember, that the tenant is always responsible for their animal(s).

How Many Emotional Support Animals Do Landlords Have to Allow?

The tenant is allowed, under Federal law, to have more than one emotional support animal. As long as the therapist has diagnosed these animals to help alleviate at least one of their patient’s symptoms, it is allowed.

The law does not specify the number allowed or not allowed. It would be difficult to argue against 3 dogs, but if you find that having 10 chickens in the apartment is causing a disturbance or an undue financial burden, you may have the right to deny the request.

Where is the Emotional Support Animal Allowed?

The Department of Housing and Urban Development (HUD) has deemed it possible for the tenant to bring their ESA;

“in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider services.”

Generally speaking, this would allow the animal in all common areas of the building and the tenant’s apartment.

However, Emotional Support Animals are not permitted to roam off leash throughout the property and must be in their handler’s control at all times.

When Can a Landlord Deny an Emotional Support Animal?

This is a tricky situation; however, there are times when the law is in the landlord’s favor. To deny a tenant the Emotional Support Animal, the animal must be:

Causing an administrative, financial, or programmatic repercussion to the premises Causing disturbance to other tenants

If the emotional assistance animal is particularly disruptive, or the tenant fails to take proper measures to ensure that the animal does not bother other tenants, the landlord may be justified in denying the accommodation or ultimately filing for an eviction.

What About Insurance for Banned Breeds?

Some regions are now imposing breed restriction laws. How does this affect the person with a breed restricted ESA?

According to HUD:

However, it’s not as simple as that. The landlord must then substantiate the claim with the insurance company directly. He or she must then see if the insurance company has a policy that has an exception for the assistance animal. If not, then an investigation may be launched against the insurance company itself for potential disability discrimination. We do not recommend denying a tenant’s Emotional Support Animal due to their breed.

When Can a Landlord Evict a Tenant With an Emotional Support Animal?

There may be circumstances that arise when a landlord does have a right to evict a tenant with an ESA. This will be if the person’s emotional support animal is a threat to the safety of the building or the tenants or the presence of the animal is causing an undue burden on the landlord.

What Fees (If Any) Can a Landlord Charge for an Emotional Support Animal?

According to HUD’s handbook for subsidized multifamily programs:

“A housing provider may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant or tenant to keep the emotional support animal.” 

However, a landlord can charge fees to repair any damages to a tenant with an Emotional Support Animal. An emotional support animal is not a “get out of jail” free card when it comes to damages caused by the animal. Each tenant is responsible for their animal’s actions and behaviors.

Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 2-44(E) (2013). 5

“If the emotional support animal causes damage to the housing unit or the common areas of the dwelling, however, the housing provider may charge the cost of repairing the damage.”

What Could Happen if a Landlord Denies a Tenant Based on an Emotional Support Animal

If a tenant believes they have been mistreated due to their ESA, they can file a lawsuit under the Housing and Urban Development Act within one-year of the incident.

HUD will then investigate the complaint at no cost to the disabled individual (the person can also go to the federal district court within two years of the alleged denial).

If the case is substantiated, it will then go to an administrative hearing with HUD attorneys litigating the case.

An Administrative Law Judge (ALJ) will consider all the evidence from the tenant and the landlord. If the ALJ decides that discrimination occurred, the respondent (landlord) can be ordered:

To compensate the tenant for actual damages, including humiliation, pain, and suffering. To provide injunctive or other equitable relief. To pay the Federal Government a civil penalty to vindicate the public interest. The maximum penalties are $16,000 for a first violation and $70,000 for a third violation within seven years. To pay reasonable attorney’s fees and costs. Know the Law as a Landlord

You do have rights as a landlord; however, it can be tricky. Before you attempt to evict or deny a person with an ESA, you will need to be sure you are in the right, or you could be facing some stiff penalties.

Service Dogs and Their Rights

Service dogs, under the Americans with Disabilities Act, have numerous rights. The ADA protects the rights of those with disabilities from discrimination, and give service animals the right to perform their duties so those with disabilities can participate in everyday life. Service animals, such as dogs and miniature horses, are individually trained to perform specific tasks related to the person’s disability. The general rules about how service dogs can interact with the world around them are quite specific.

When it comes to landlords and tenancy, some landlords will have a “no pets” policy on their premises.  This, if not handled, can potentially cause problems for those who have pets. However, if your animal if a service animal, you do not have to worry about any of the legal repercussions of your service animal, as they and you are protected under the ADA. If you are not ready to train or buy a service dog you may still benefit from an emotional support animal or ESA.

Need an ESA Letter? Read how to get one online here.

How Do I Prove I Have A Service Animal?

The beauty of having a service animal is that you don’t need to prove anything to be given access. The ADA does not require service animals to have vests, leashes, or gear that identifies them as being a service animal, nor does the ADA handle any of the specifications involving training and certifying service animals. Training and qualifying service animals fall under any organization that trains service animals for those with disabilities. As long as you have your documentation on you, knowing that you are disabled and have a service animal gives you the benefit of protection under the ADA. So, what happens when someone does doubt your disability or service dog? Here’s where the ADA jumps in once more.

How The ADA Benefits You:

The ADA specifically limits the power of those who run goods and services operations in favor of protecting the rights of the disabled. A landlord, a business owner, or a covered entity employee are only allowed to ask two questions in regards to a service animal:

1. Is the dog a service animal required because of a disability? 2. What work or task has the dog been trained to perform?

With these two questions specially lined up, staff are not allowed to request documentation for the dog, ask it to demonstrate its tasks or inquire about the nature of the person’s disability. For instance, if you’re heading into a hotel that doesn’t allow pets to accommodate the rooms, as long as you know, by documentation and medical records that you are a disabled person and have a trained service dog, then that means that you and your pet will be allowed to occupy that premise. With very few exceptions to this rule, the ADA gives you and your service animal access to public spaces.

How Does the ADA Apply to Housing?

Housing falls under the Fair Housing Act, an act that explains the housing obligations of providers in relation to their residents. The FHA follows the rules and regulations of the Americans with Disabilities Act, which in turn provides specific instructions for housing providers in their cases for accommodating those with disabilities.

Because landlords are not allowed to ask about the documentation for the animal, ask for a demonstration for the dog’s abilities, and inquire about the disabled person’s disabilities, then that means that the landlord has to accommodate for the new tenant and their service animal. By doing so, they must permit the disabled person to live within the housing residency through a modification or exception to their “no pets” policy. Other entities that are also subjected to the ADA and FHA acts are public housing agencies, rental offices, shelters, residential homes, multi-family housing, dorm rooms at universities and colleges, and assisted living facilities.

So, What Animals Need A Letter?

Emotional support animals are the type of assistance animals that would need a letter to be approved for housing. This is because ESA’s are not protected under the American’s with Disabilities Act. However, for those with emotional support animals, they can request a letter from their mental health professional for accommodations, as those letters provide one of the main leeways for access to housing with a “no pets” policy.