Even if your rental property is not pet-friendly, you should still be aware of the laws surrounding service animals and emotional support animals (ESAs) because these animals are not considered pets. The law treats them differently and has special requirements for landlords.
In this article, we’ll look at the following points:
- What is the difference between a service animal and an emotional support animal?
- Who is exempt from renting to tenants with service and emotional support animals?
- Why are these animals a hot-button issue for landlords and renters?
- Legal guidelines for landlords and renters
First, let’s explore the differences between a service animal and an emotional support animal.
Service Animals vs. Emotional Support Animals
Service animals provide a physical service that mitigates some aspect of a physical or mental disability. The classic example is a guide dog leading a blind person or a seizure dog alerting its owner to an oncoming seizure.
Emotional support animals provide emotional comfort to people with a physical or mental disability.
Types of Animals
A service animal is usually a dog, although the category has recently been extended to trained miniature horses. An emotional support animal may be any type of domestic animal. A service animal may also be an ESA, but an ESA is not necessarily a service animal.
Skills and Training
Service animals have special training that allow them to perform specific tasks to assist their owners. Because of their training, it is rare to have service dogs cause significant damage to a rental property. Emotional support animals do not require any training.
Rights and Access
Service animals are certified through the Americans with Disabilities Act (ADA), which means they have access to most any place where the general public is welcome. This includes restaurants, stores, and movie theaters. The same rights do not extend to emotional support animals, which are protected through the Fair Housing Act (FHA). However, both types of animals are permitted in rental housing.
Therapy animals are in a separate category. These animals normally help groups of people (such as children in hospitals or senior citizens in a nursing home) and do not require special training. They are not guaranteed housing rights in the same way as service animals or ESAs.
Even though service animals and emotional support animals are different, there are a lot of similarities in how landlords must treat tenants and applicants with these types of animals. We will refer to service animals and emotional support animals collectively as assistance animals, and draw relevant distinctions between the two groups where necessary.
When is a landlord exempt from renting to tenants with service animals/ESAs?
In most cases, landlords are not exempt from renting to tenants with assistance animals. Even if the property is declared “pet-free,” assistance animals are not considered pets. Both the ADA and FHA have agreed that allowing animals in the unit is a “reasonable accommodation” to provide equitable access to housing for tenants with disabilities.
Nevertheless, there are some cases where a landlord may be exempt from renting to tenants with assistance animals:
- If the landlord rents out a single family home (SFH) without a real estate agent, provided the landlord owns three or fewer SFHs
- If a landlord rents out a multiplex with four units or fewer, provided the landlord is living in one of the units
- If a landlord would suffer unreasonable financial hardship due to the assistance animal
- If the assistance animal causes damage or threatens other residents
- If the assistance animal is too large for the accommodations
The last three reasons are subjective. Landlords are not allowed to deny assistance animals due to a potential problem that has not yet occurred. For example, if you worry an animal will threaten other residents but do not have any evidence supporting this claim, you cannot deny the assistance animal on fear alone.
The situation is different if you have documented reasons supporting your claim. The following situations are some examples, not an exhaustive list.
The landlord claims financial hardship
- E.g. their insurance would deny coverage based on the breed of dog
- E.g. the tenant demands an expensive accommodation that is deemed unreasonable, such as changing the flooring in the unit
The animal is causing damage or threatening residents
- E.g. the animal lunges at other residents or threatens to bite them
- E.g. the animal leaves feces that are not cleaned up in a common area, especially one where children are playing on the ground
- E.g. the animal becomes fractious or causes a ruckus
The animal is too large for the accommodation
- E.g. a miniature horse or a Great Dane in a studio apartment
- E.g. the animal has trouble getting to the unit or fitting in the door (note that if multiple units are available, the landlord should not “steer” an applicant toward any particular unit)
- E.g. the animal becomes fractious or causes a ruckus due to being confined in a small space
A Hot-Button Issue
Despite the law, landlords and tenants will sometimes come into conflict about assistance animals. In order to help alleviate this conflict, it can be helpful to understand the concerns from each side.
Many landlords feel that it’s relatively easy for tenants to obtain supporting documentation (in the form of online certificates) declaring an animal to be an ESA when it’s really just a pet. Some tenants try to game the system to avoid paying pet deposits or to live in the property they want to. This causes landlords to be wary of anyone claiming their animal is an assistance animal.
Some landlords wish to keep their units free of any animals, since animals (regardless of service or ESA distinction) do add more wear and tear on the rental unit. Normally, any damages are covered with a pet deposit, but landlords are not permitted to collect additional deposits, rent, or fees due to the presence of an assistance animal.
This can create a difficult situation if the animal causes damages to the property that go beyond the scope of the normal security deposit. A landlord will need to charge a tenant for damages after the fact, rather than keeping money as a guarantee.
As always, it’s best to include clear language in the lease regarding who pays for damages caused by an assistance animal. An additional solution would be to charge a larger deposit for everyone. As a landlord, you cannot charge a larger deposit only for tenants with assistance animals, as this would be discriminatory. Be sure to check your state laws for the amount of security deposit you can charge.
For tenants with a legitimate medical need that prompts the use of an assistance animal, finding a rental property to accommodate them can be a nightmare. Despite the legal protections put in place by the ADA and FHA, tenants with disabilities still face discrimination when trying to find a place to live.
Some landlords discriminate behind the scenes and claim they denied the application for another reason. Others are not willing to accept the animal without an additional pet deposit, which is a violation of the law.
Part of the difficulty is that with the rise of fake certificates, landlords are extra wary of any support or service animal, legitimate or not. Faking service animal or ESA status makes it that much harder for people with legitimate needs to access housing. Additionally, some states impose fines and penalties against people who fake assistance animal status.
Landlords want to maintain the quality of their property without having it be damaged by animals who may not even have any training. Renters with disabilities can benefit enormously from assistance animals and have the right to find accessible housing.
It’s easy to see the tension. Let’s look at how we can alleviate it.
Takeaways for Landlords Renting to Tenants with Assistance Animals
Try not to jump to conclusions without evidence. Recognize that many applicants have legitimate disabilities and require animal assistance. Here are some of the legal matters landlords should take into consideration.
Legal Guidelines for ESAs
- You CAN ask for a letter from a licensed doctor or therapist affirming the ESA status of the animal.
- You CANNOT ask about the nature of the disability. This can be viewed as discriminatory.
- Generally, you CANNOT charge additional deposits, rent, or fees because of the service animal. State laws on this may vary, so be sure to check your local ordinances.
Legal Guidelines for Service Animals
- You CANNOT ask about the nature of the disability. This can be viewed as discriminatory.
- You CAN ask if it is a service animal and what task it has been trained to perform.
- You CANNOT demand to see service animal certification. While this mainly applies to business owners, the law is a little fuzzy for landlords. You may still ask for further documentation about the nature of the animal; this does not have to be the official certificate per se.
Many landlords feel that assistance animals are accorded enormous rights in accessing private property. The aim of the law is to provide equity of access to those who suffer from disabilities and are able to take advantage of the benefits animals can provide. The law is always changing as new cases come up and challenges arise. We may see new regulations for emotional support animals in the coming years, especially due to the rise of falsified certificates bought online.
Takeaways for Renters with Assistance Animals
If you have a disability and use an assistance animal, here are some suggestions to ease any tension with the landlord.
Suggestions for Renters with Service Animals
- Over-document. If you have an official, certified service animal, have the certificate ready. Even though it is not legally required, being able to produce it can help alleviate a landlord’s concerns.
- Be ready to answer what type of service the animal performs.
Suggestions for Renters with ESAs
- Don’t buy a certificate online. Many less-than-reputable websites try to sell certificates to anyone who will pay. A better solution would be asking your doctor or therapist to write a letter.
- Don’t request unreasonable accommodations. Just because you have the right to bring your animal doesn’t mean the landlord needs to completely renovate the unit to your tastes. Try to be flexible unless it’s an absolute necessity.
Suggestions for All Tenants with Assistance Animals
- Approach your landlord early. Being upfront about your assistance animal helps your landlord know you aren’t trying to circumvent the rules.
- Offer to pay for any animal-related damages. Let your landlord or manager know you plan to be responsible for your animal.
- Be willing to let the landlord meet the animal. While not a legal requirement, the landlord may just want reassurance that Fido is friendly and won’t be attacking other residents.
Talking to your landlord before you move in or before you get the assistance animal can help alleviate some of the tension. Express your need for an assistance animal and be willing to furnish the appropriate documentation. Trying to sneak an animal into a no-pets facility and only claiming it’s an assistance animal once the landlord finds out makes the landlord feel tricked. If you have a legitimate disability that requires an assistance animal, it’s best to be up front.
Some tenants fear discrimination based on their assistance animal. Unfortunately, this can and does occur. The best defense is to document your conversations with the landlord and make sure you meet all the landlord’s requirements (for income, employment, and credit score) before applying to the apartment. If you have an assistance animal and get rejected, it may not be due to the assistance animal. If, however, you have evidence of discrimination, you could write the landlord a letter saying you plan to file a complaint with the U.S. Department of Housing and Urban Development. This may prompt the landlord to explain their reasons for rejection.
Renters, when trying to enforce your rights to an assistance animal, be aware that you still need to have a relationship with your landlord. If the landlord obviously resents you and your animal, you may want to look for a more supportive environment if possible.
Assistance animals are not considered pets. Even if a landlord has a no pet policy, they may still need to allow service dogs and emotional support animals in their rental properties unless they fall under a specific exemption. While allowing assistance animals into rental units can be a hot-button issue, both landlords and renters should know the law and follow it to the best of their ability.