Archive for the ‘Housing’ Category

The Federal Fair Housing Act prohibits landlords from discriminating based on disability. Housing providers can never charge a fee or deposit just because a tenant needs a service dog.

Seeking a Home with a Service Animal

Imagine the following scenario: A tenant is accepted in a rental building and discloses that she has a service dog: a trained Golden Retriever that monitors her for impending seizures. In compliance with their federal Fair Housing obligations, the landlord agrees to accommodate the service dog even though the building prohibits all dogs over 12 pounds. 

However, the landlord says he will have to charge a pet security deposit. In addition, the building charges a monthly pet fee, but the landlord says he will give the tenant a 20% discount. Lastly, the landlord charges an application fee for considering the tenant’s request to live with their service dog. 

Were the landlord’s actions in compliance with HUD’s rules for service dogs? Let’s assess this situation with the following four questions.

1. What Does the Federal Fair Housing Act Say?

Do the pet fee and pet security deposit requested by the landlord, even at a discounted rate, violate the Federal Fair Housing Act? 

According to the Federal Fair Housing Act, a landlord discriminates against a person with a disability if the landlord refuses to provide “reasonable accommodation” for their service animal without a valid exemption. Service dogs are not considered pets under HUD’s rules, but rather assistance animals needed by people with physical or mental health disabilities. Service dogs that are used for mental health conditions are known as psychiatric service dogs

Under HUD’s guidelines, landlords can never charge a fee or deposit for a tenant’s service animal. That is true even if the building charges a fee or deposit for all pets. Landlords cannot offer a discounted rate for waiving any pet fee, or charge an application fee for considering the service dog. 

The idea behind this rule is that it would be unfair and discriminatory to charge a person a fee or deposit just because they have a disability requiring a service animal. 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 challenges of their disability.

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

Service Dog Certifications

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

Service dogs are used by people with both physical and mental health disabilities. To have an official service dog, an individual must have a qualifying disability and a fully trained dog that can perform one or more tasks or jobs related to their condition. 

There are countless vital tasks that service animals perform for their owners. For example, a service dog can be trained to pull a wheelchair or provide guidance for someone with visual impairments. A psychiatric service dog can be trained to retrieve medications, provide calming tactile stimulation during moments of crisis or interrupt panic episodes.

3. Who Pays for Damages? 

Does this mean that a person with a disability would never need to pay for damages caused by their service animal? No, service dog owners are always responsible for the actions of their animals. No matter how well-trained a service animal is, they’re still animals. Accidents can happen. If the rental property sustains damage (aside from usual wear and tear) from a service animal, the service dog owner would be held responsible. If the tenant had deposited a standard security deposit under their lease, the landlord might collect for damages from that amount.

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

Service Dog Certifications

4. How do you prove that you own a service dog?

If you own a service dog, the landlord can ask two questions for verification: 

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

Landlords cannot insist on documentation for service dogs. However, you may have seen service dog owners carry items like ID cards, vests, certificates, and tags. These items are used by service dog owners to publicly signal that their animal is a working service animal. Still, this paraphernalia does not by itself elevate a dog to service animal status. 

Service dog equipment can be especially helpful in buildings that ban pets since other residents will be curious about why your service dog has been allowed on the premises. Having items that clearly indicate your dog is a service dog can alleviate any potential confusion and tension with other residents.

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 have numerous rights under federal laws. These laws allow service dog owners to be accompanied by their assistance animal in public locations, during travel, and in their residences. To qualify for a service dog, a person must have a qualifying physical or mental health disability that requires the use of a trained service dog.

When it comes to housing, service dogs are exempt from “no pets” policies in residential buildings under the Fair Housing Act. Service dogs are also exempt from pet fees and deposits, as well as size and breed restrictions that are applicable to normal pets.

The Fair Housing Act also protects emotional support animals, which are a different category of assistance animals. Emotional support animals help with mental health disabilities and do not need any specialized training.

Another major difference between service dogs and ESAs is that ESAs require an ESA letter from a licensed healthcare professional as proof, whereas service dogs do not require special documentation.

How Do I Prove I Have A Service Animal to my Landlord?

The ADA and Fair Housing Act do not require service animals to have vests, ID cards, registrations, certifications, letters, or gear that identifies them as service animals. Service dog owners commonly use these accessories, but they are not required. Third parties cannot demand to see these items before granting access to a service dog on the premises.

You also cannot qualify for a service dog by obtaining an ID card, registration, or certification. You can only obtain these items after you have already fully qualified for a service dog and can represent that you have a legitimate service animal for your disability.

So how do you prove that you have a service dog to your landlord? If the disability-related need for the service dog is not obvious, your landlord can ask you two questions: 1. Is the dog a service dog required because of a disability? and 2. What work or task has the dog been trained to perform?

Disabled tenants with disabilities have a right to privacy and dignity. Landlords cannot ask the tenant to have their dog demonstrate the task it has been trained to perform or request the tenant’s medical records.

While you do not need service dog paraphernalia, it can be helpful to have things like vests, IDs, and certificates to easily signal to other tenants that you have a service dog and not a normal pet.

Service dog owners do not need to submit documentation such as a letter from a doctor or therapist. However, some tenants with psychiatric service dogs will obtain a PSD letter confirming they have an eligible mental health disability such as severe depression, anxiety, or PTSD. PSD letters are optional but provide peace of mind for current or potential owners of psychiatric service dogs.

So, What Animals Need A Letter?

Under HUD guidelines, owners of emotional support animals should submit a letter from their licensed healthcare professional to their landlord. Landlords are entitled to see a valid ESA letter before accommodating an ESA in a no-pets building. ESAs are also exempt from pet fees and pet restrictions on size, breed, and weight.

An ESA letter verifies that a tenant has a mental health condition like depression, anxiety, or PTSD that is helped by the presence of an emotional support animal. While service animals can only be dogs, ESAs can be dogs, cats, birds, fish, and other small household pets. Emotional support animals have housing rights but not the broader public access rights of service dogs because they are only protected under Fair Housing rules, and not the ADA.

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

See if you qualify for an Emotional Support Animal letter from ESA Doctors by clicking the link below.