Decoding Pets, ESAs, and Service Animals
One of the biggest decisions you'll have to make as a landlord is whether or not tenants can keep a pet while living on your property. We know this isn't an easy decision, which is why we created this comprehensive guide for landlords! In it, we break down the differences between pets, emotional support animals (ESAs) and service animals. We also provide pros and cons lists for each type of animal along with tips and tricks that will help ensure smooth sailing when navigating these types of situations as a landlord.
In this article we will discuss the differences between the types of animal companions and the different regulations that govern how landlords are to treat the owners of each.
Differentiating Types of Animals
Pets
Pets are animals kept for companionship and enjoyment. The most common pets include dogs, cats, and small animals such as guinea pigs or rabbits. As a landlord, you have the discretion to allow pets in your properties, and you might have rules around pet size or breed.
Emotional Support Animals (ESAs)
Emotional Support Animals, or ESAs, are animals that provide comfort and support in forms of affection and companionship for an individual suffering from various mental and emotional conditions. An ESA is not required to perform specific tasks for a disability like service animals. They are acknowledged in the Fair Housing Act, so landlords are required to make reasonable accommodations for tenants who have ESAs.
Service Animals
Service Animals, typically dogs, are specially trained to perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disabilities. These tasks include things like pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button. They are protected by the Americans with Disabilities Act, meaning landlords are required to allow them, regardless of pet policy.
Fair Housing Laws
Fair Housing laws play a pivotal role in protecting both landlords and tenants when it comes to the matter of animals on the premises. For tenants, these laws ensure that individuals with disabilities have equal opportunities to enjoy housing, including the right to keep service animals and emotional support animals.
For landlords, the Fair Housing Act requires them to make 'reasonable accommodations' for tenants who have service animals or emotional support animals. This means that even if a landlord has a 'no pets' policy, they are legally obligated to allow these types of animals on their property, provided the tenant can furnish appropriate documentation proving the need for the animal.
However, it's important to note that 'reasonable accommodation' does not mean that landlords have to tolerate unruly or destructive animals. If an animal poses a threat to the safety of others or causes significant property damage, the landlord can take action—even if the animal is a service or emotional support animal.
Remember, understanding and adhering to these laws not only helps create a harmonious living experience for all involved parties but also aids in avoiding potential legal disputes.
Documentation Requirements
When housing ESAs or service animals, landlords have the right to ask for relevant documentation that validates the need for such animals. Understanding what kind of documentation is required can help you navigate this sensitive issue effectively.
Emotional Support Animals (ESAs)
For ESAs, a common form of documentation is a letter from a licensed mental health professional. This letter should state that the tenant has a mental or emotional disability that benefits from the companionship of the ESA. Note that landlords cannot request documentation if the disability is readily apparent or already known. They also cannot ask about the tenant's disability or demand to see the animal demonstrate its task.
Service Animals
For service animals, the rules are slightly different. Landlords can ask if the animal is required because of a disability and what work or task the animal has been trained to perform. However, they cannot ask for proof or demonstration of the task, nor can they inquire about the nature of the person's disability.
Remember that asking for documentation is not the same as verifying its authenticity. In both cases, landlords cannot require professional training or certification for the animal, and they cannot ask for medical records or detailed information about the tenant's disability.
While this process may seem daunting, it is crucial for maintaining a respectful and legally compliant housing environment.
The Landlord's Rights
As a landlord, you have certain rights that can help you manage your relationship with tenants who have pets, ESAs, or service animals. Here's what you need to know:
Pet Policies
For regular pets, landlords have the right to establish a pet policy that may include restrictions on the type, size, and breed of animals allowed. This policy can also include requirements for pet deposits or pet rent.
Verification of Need for ESA or Service Animal
When a tenant requests to keep an ESA or service animal in the rental property, landlords have the right to ask for documentation that validates the need for the animal. This is generally a letter from a licensed healthcare provider (in the case of an ESA) or a clear statement that the service animal is required due to a disability and what task it is trained to perform.
Reasonable Accommodation
The Fair Housing Act requires landlords to provide 'reasonable accommodation' for tenants with disabilities. This often means allowing ESAs or service animals even in 'no pets' properties. However, 'reasonable accommodation' does not mean landlords have to accept animals that pose a threat to the safety of others or cause significant property damage.
Removal of Dangerous Animals
If an animal, including an ESA or service animal, is aggressive, destructive, or poses a direct threat to the health and safety of others, landlords have the right to request its removal, irrespective of its status.
Landlords must balance their rights with their responsibilities to provide reasonable accommodation to tenants with disabilities. Understanding these rights can help landlords navigate tricky situations and avoid potential disputes.
The Tenant's Rights
Tenants with ESAs or service animals have specific rights protected by law. Here's what tenants need to know:
Right to Keep ESAs and Service Animals
Under the Fair Housing Act, tenants with disabilities have the right to keep Emotional Support Animals (ESAs) and service animals in their rental property, even if the property has a 'no pets' policy.
No Extra Fees
Tenants cannot be charged extra fees or deposits for ESAs or service animals. While landlords may charge tenants for damage caused by these animals, they cannot require tenants to pay a "pet fee" or "deposit".
Equal Housing Opportunities
Landlords cannot discriminate against tenants with disabilities. This means that landlords cannot refuse to rent to someone solely because they have an ESA or service animal.
Reasonable Accommodation
Tenants have the right to request 'reasonable accommodation' for their disabilities, which often includes the right to keep ESAs or service animals. Landlords must grant these accommodations unless they pose an undue financial or administrative burden, or fundamentally alter the nature of the housing provider’s operations.
Privacy
Tenants have a right to privacy. Landlords cannot ask for detailed medical records or inquire about the nature of the tenant's disability.
Compliance: What Happens if an ESA Housing Rights Complaint Has Been Filed?
If a tenant with an Emotional Support Animal (ESA) believes their rights have been violated, they might file a complaint with the Department of Housing and Urban Development (HUD) or their local Fair Housing Agency. Upon receiving a complaint, the agency launches an investigation into the allegations.
The process typically includes the following steps:
Receipt of Complaint
The agency receives and reviews the complaint. The complaint must be filed within one year of the alleged violation.
Investigation
If the agency determines that a violation may have occurred, it starts an investigation. This process involves gathering evidence, conducting interviews, and reviewing the landlord's policies and practices.
Determination
After the investigation, the agency makes a determination. If it finds that no violation occurred, the complaint is dismissed. If it finds that a violation did occur, it issues a 'Letter of Determination'.
Resolution
Once a Letter of Determination is issued, attempts are made to resolve the issue. This could involve the landlord being required to change their policies, pay a fine, provide reasonable accommodation, or other measures.
Throughout this process, tenants are protected against retaliation. It's illegal for a landlord to evict or otherwise discriminate against a tenant for filing a complaint. Remember, understanding the process can be crucial for both tenants and landlords to ensure fair and respectful housing.
What Are The Penalties For Violating ESA Housing Rights?
Violating the housing rights of a tenant with an Emotional Support Animal (ESA) can result in serious penalties for landlords. The specific penalties can vary depending on the severity of the violation and the jurisdiction in which the property is located. However, common penalties include:
Fines
Landlords who violate ESA housing rights can face substantial fines. The exact amount of the fine can vary depending on the severity of the violation.
Damages:
In some cases, a landlord may be required to pay damages to the tenant. This could include compensation for emotional distress, punitive damages, and any costs the tenant incurred as a result of the violation.
Policy Changes:
The offending landlord may be required to change their policies to ensure future compliance with Fair Housing Act regulations. This could include implementing new procedures for handling requests for reasonable accommodation or revising existing pet policies.
Mandatory Training
In some jurisdictions, landlords found in violation of ESA housing rights may be required to undergo training on the Fair Housing Act and the rights of tenants with disabilities.
It's important to note that these are just potential penalties. The actual penalty will depend on a variety of factors, including the nature of the violation, the harm caused to the tenant, and the landlord's prior history of Fair Housing Act violations. Therefore, landlords should make every effort to understand and comply with ESA housing rights to avoid potential legal and financial consequences.
Pet Policy Considerations for Rental Properties
When developing a pet policy for your rental properties, it's essential to balance the rights of your tenants, the interests of your property, and the requirements of the law. Here are some tips to help you establish a fair and legal pet policy:
Be Clear and Specific
Your policy should clearly define what constitutes a "pet" and outline any restrictions on breeds, sizes, or number of pets allowed. Ensure the policy also includes rules about pet behavior, cleanliness, and any potential damage.
Require Pet Insurance
Require tenants to obtain pet insurance for their animals. The policy should cover any potential damage or destruction done by the pet.
Require Proof Of Pet Vaccination
Require tenants to provide proof that their pet has been vaccinated and is up-to-date on all necessary vaccinations.
Require Pet Registration
Specify that the tenant must register the pet with the local animal control agency or other appropriate organization.
Consider Pet Deposits or Pet Rent
While you cannot charge additional fees for service animals or ESAs, you may consider a pet deposit or monthly pet rent for pets. This can cover any potential damage caused by the pet and incentivize tenants to maintain their pets responsibly.
Include a Pet Agreement
A pet agreement signed by the tenant can be a useful addendum to your lease. This agreement can detail the tenant's responsibilities for their pet, including keeping the animal under control, cleaning up after it, and bearing responsibility for any damage it causes.
Stay Updated on Local Laws and Regulations:
Laws and regulations related to pets in rental properties can vary by city or state. Stay updated on these laws to ensure your pet policy is compliant.
Conclusion
In conclusion, managing a rental property that navigates the complexities of Emotional Support Animals (ESAs), pet policies, and the rights of all tenants can be challenging. Landlords must strike a balance between supporting the rights and needs of ESA owners, sustaining the integrity of their property, and ensuring the peace and satisfaction of all tenants. Both tenants and landlords should familiarize themselves with the Fair Housing Act and local policies. A clear, comprehensive, and legal pet policy, alongside a respectful and inclusive environment, can contribute to a harmonious residential community. It is crucial to remember that understanding and following these rules can prevent potential conflict, legal issues, and financial penalties.