ESA and Service Animals
Guidelines for Landlords
Navigate the vital regulations surrounding Emotional Support Animals (ESAs) and service animals to ensure compliance and enhance tenant support.
Understanding Emotional Support and Service Animals for Property Owners
Emotional support and service animals (respectively, ESAs and SAs) have legal protections that impact rental policies. Landlords must understand fair housing laws, reasonable accommodations, and the differences between these types of assistance animals to comply with law and avoid discrimination claims. This article introduces these concepts, explains the governing law, and offers practical guidance for landlords.
Understanding Emotional Support Animals (ESAS)
Definition and Purpose
An Emotional Support Animal (ESA) provides comfort to those with anxiety, depression, PTSD or other mental conditions by simply being present, helping to ease symptoms without needing specialized training.
Legal Protections and Rights
Under the Fair Housing Act (FHA), individuals with ESAs have the right to live with their animals, even in “no pets” housing. Landlords must accommodate these tenants and may not discriminate based on ESA ownership.
Understanding Service Animals (SAs)
Definition and Purpose
Service Animals (SAs) are specially trained to assist with tasks such as guiding the blind, alerting the deaf, and aiding those with mobility impairments. They are essential for their owners’ independence and safety.
Legal Protections and Rights
Service animals have strong protections under the ADA, which are incorporated under the FHA requiring landlords to allow SAs in their properties regardless of pet policies. SAs must be permitted in all public areas and private accommodations, ensuring individuals with disabilities can live independently and safely.
Similarities and Differences Between ESAS and SAS
Purpose
Both ESAs and SAs support individuals with disabilities: ESAs provide emotional comfort, while SAs perform specific tasks to assist with physical disabilities.
Impact on Tenant
Both ESAs and SAs significantly improve their owners’ quality of life, helping them live more independently and with greater peace of mind.
Non-discrimination
Landlords cannot discriminate against tenants with ESAs or SAs under the FHA and ADA. They must treat these tenants like any others, without additional restrictions, fees, or unjust prejudice.
Documentation and Verification
Landlords can request certain documentation to verify the need for ESAs or SAs. For ESAs, a letter from a licensed mental health professional may typically be required. For SAs, landlords may ask if the animal is needed due to a disability and what tasks it has been trained to perform.
Legal Requirements for Accommodation
Landlords must accommodate both ESAs and SAs by accepting them in “no pets” properties, waiving pet fees, and often waiving breed and size restrictions. However, businesses are permitted to refuse access to ESAs outside of the housing context. For example, it may be lawful to bar ESAs from a gym, grocery store, or restaurant, but it is unlawful to bar SAs.
Training
SAs are trained to perform specific tasks, while ESAs do not require any training. Neither requires specific certifications or identification.
Animal Types
The ADA specifies that service animals can only be dogs (and miniature horses in certain cases), whereas ESAs can be any type of animal that provides emotional support.
Legal Status
SAs are protected under the ADA, granting them access to all public areas, including housing, while ESAs are covered under the FHA, which pertains only to housing. Unfortunately, unscrupulous actors encourage ESA fraud online, and sometimes even well-intentioned tenants are caught up. Landlords should be vigilant and willing to help educate tenants, where applicable.
COMMON MISCONCEPTIONS ABOUT ESAs AND SAs
Misconception
ESAs and Service Animals Are the Same
Fact
Service animals are specially trained to perform tasks for individuals with disabilities (e.g., guide dogs for the visually impaired). ESAs provide comfort but do not require specialized training.
Misconception
ESAs Have the Same Legal Rights as Service Animals.
Fact
Under the Americans with Disabilities Act (ADA), only service animals have public access rights (e.g., restaurants, stores, and public transportation). ESAs are generally not allowed in these spaces unless permitted by specific policies.
Misconception
Landlords Must Accept All ESAs
Fact
Under the Fair Housing Act (FHA), landlords must make reasonable accommodations for ESAs, even in no-pet housing. However, they can deny ESAs if they pose a threat or cause undue burden.
Misconception
Any Pet Can Be an ESA or Service Animal
Fact
Service animals under the ADA must be dogs or, in some cases, miniature horses. ESAs can be various animals, but they must be prescribed by a licensed mental health professional.
Misconception
Assistance Animals Must Be Certified or Wear a Vest
Fact
The ADA does not require service animals to be certified, registered, or wear identifying gear. However, they must be trained to perform tasks related to the owner’s disability.
Misconception
Businesses Can Require Documentation for Service Animals
Fact
Businesses can only ask two questions: (1) Is the animal required due to a disability? and (2) What tasks is it trained to perform? Additionally, if it is plainly apparent an animal is a service animal, such as in the case of a seeing eye dog, businesses should not ask even these limited questions.
Misconception
Service Animals and ESAs Are Always Well-Behaved
Fact
While service animals undergo extensive training, ESAs do not. If any animal becomes disruptive, a business or landlord may ask for its removal. This is yet another reason why including clear rules for pets in leases is a good idea, even for “no-pet” properties.
Legal Responsibilities of Landlords
Reasonable Accommodation
Both ESAs and SAs are entitled to reasonable accommodation, which means landlords must grant exceptions and/or modifications allowing a person with a disability to equally enjoy their housing. Minor allergies or fears of animals do not generally do not take precedence, except in the most extreme circumstances. However, circumstances causing undue financial hardship on a landlord, such as an insurer refusing to cover a specific breed, are more likely to be considered unreasonable accommodations. There is not a clear rule, though, and sometimes there are good arguments on both sides.
Reasonable accommodation often means:
- Eliminating pet fees for ESAs and SAs.
- Allowing ESAs and SAs into properties that do not permit pets.
- Exempting certain count, breed, and size restrictions.
Verification Requirements
Landlords can request limited documentation for ESAs but must avoid overstepping legal boundaries. For an ESA, they may ask for a letter from a licensed mental health professional verifying the need. For an SA, landlords can inquire if the animal is needed due to a disability and what tasks it is trained to perform, but they cannot request medical documentation or a demonstration of the animal’s abilities. In the case of an SA for which the need and task are plainly visible, such as for a seeing eye dog, the landlord may not request anything.
Helpful Tips for Landlords Making a Pet Policy
Understand Pet Policy Guidelines
- Establish clear rules for all pets including screening, acceptable behavior, and compliance.
- Require pet endorsement, or other proof of coverage, on renter’s insurance policies.
- Define what a pet is versus an ESA or SA.
- Summarize all the pet restrictions while making it clear there are exceptions for ESAs or SAs.
- Establish a process and forms for tenants to request reasonable accommodation.
Handling Tenant Requests
- Acting on accommodation requests in a timely manner.
- Create and keep well-documented records of all communications and documentation of ESAs and SAs.
- Educate all members of staff on the legal implications and requirements concerning ESAs and SAs.
- Be ready to prove any hardships or reasons for denial—This will usually require evidence allowing a specific requested accommodation will create an undue hardship for the landlord.
Handling Complaints and Concerns from Neighboring Tenants
- All tenants should be made aware of the potential presence of ESAs and SAs, even in “no-pet” properties—This is yet another reason to include pet rules in all leases.
- Landlords should keep written records of complaints against assistance animals and process them timely, just like they would for pets.
- In cases where the assistance animal is at fault, landlords should use comply-or-vacate notices to enforce lease terms and community rules.
- Cases where the assistance animal is not at fault can be trickier—In those cases, landlords should consider offering concessions to the complaining tenant, such as offering unit transfers and/or early lease termination.
Disclaimer
This article is provided for informational, educational, and marketing purposes only and does not constitute legal advice. The content is current as of its publication or last review and may not reflect the latest legal developments. Do not rely solely on this information—consult a qualified attorney regarding your specific situation.
Handle ESAs With Clarity
Managing the requirements for Emotional Support Animals and Service Animals in rental properties can be complex. However, landlords well-versed in their legal obligations and some best practices can navigate much of this complexity with ease.
Not sure where to start? Contact Cascade Counsel for help with all your assistance animal compliance needs.
