TL;DR A landlord may not use a “no pets” policy to exclude assistance animals. A tenant seeking to keep an emotional support animal may qualify for an exception to any “no pets” policy under federal law if s/he can establish the need due to their disability.
Around our office, we’re always educating consumers and professionals about the differences between a “Service Animal” and an “Emotional Support Animal.”
I like to use the example of a “seeing-eye dog” to illustrate the differences.
Service animals, which are typically dogs, are highly-trained (though not required) and perform a task (aka a seeing-eye dog).
Emotional support animals, on the other hand, require no training and provide comfort simply by their companionship and emotional bond. Here at ESAD, we happily work with dogs and cats.
This confusion becomes readily apparent to landlords and their no-pets policy, as they fail to understand the Fair Housing Act of 1973 designates “service animals” are not to be considered pets.
Let’s take a moment and examine the federal laws regulating landlords in these matters.
The Department of Justice amended its regulations of the Americans with Disabilities Act (“ADA”) to define service animal to include only dogs. Under the California Disabled Persons Act, a service animal can also include a dog trained to assist with psychiatric disabilities.
The ADA expressly excludes emotional support animals.
However, when it comes to housing accommodations, landlords and associations must also consider the Fair Housing Act.
In HUD’s view, “persons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal, under both FHAct and Section 504.” [HUD Memo, U.S. Department of Housing and Urban Development FHEO Notice: FHEO-2013-01]
Similarly to the ADA, HUD notes “an assistance animal is not a pet.” Therefore, an emotional support animal is not a pet.
All too common, a tenant’s request for a reasonable accommodation request for an emotional support animal is denied because a landlord considers the animal as a “pet.”
Pro-tip: This situation gives rise to a possible enforcement claim if the tenant files a HUD complaint. Ultimately, the HUD enforces allegation of landlord civil rights violations. It is not uncommon for settlements to be six-figure sums.
How a landlord must evaluate a Reasonable Accommodation Request
As outlined by HUD, a housing provider (landlord) must make this analysis:
1. Is the animal a service animal?
Yes: Tenant is permitted by law to have the service animal on the leased premises.
2. If not, then further consideration is required, examining the role of the animal.
a. Does the tenant have a disability (a mental or physical impairment that substantially limits one or more major life activity)?
b. Does the tenant have a disability-related need for an “assistance animal?”
An answer of “no” to either question indicates the FHAct and Section 504 do not require a modification to the landlord’s “no pets” policy and the reasonable accommodation request may be denied.
Example: Jane Doe requests a reasonable accommodation for her cat, but the landlord has a “no-pets-allowed” policy.
- Per the ADA, a cat cannot be a service animal.
- If the tenant demonstrates her disability and the cat is necessary to alleviate one or more of the symptoms of the disability, this cat would be a reasonable accommodation, and federal law requires the landlord to modify or make an exception to the “no pets” policy.
Pro-tip: the first step is a perfectly-written emotional support animal letter, which can be used to demonstrate the items noted above.
Exceptions to breed, size and weight rules.
Breed, size and weight limitations are not applicable to an assistance animal. Taken on a case-by-case basis, landlords can not exclude an entire breed, such as pit bulls, but must objectively determine whether the identified assistance animal’s actual conduct poses a direct threat to the health or safety of others.
What about deposits?
A landlord may not require applicants and residents to pay a deposit for an assistance animal.
Landlord Deny Your ESA (Assistance Animal)?
Did your apartment deny your emotional support animal? Thinking of filing a complaint with the Department of Housing and Urban Development (HUD)?
Do you know even where to start? Should you even start? Do you have any idea where to go from here?
Get a free analysis today.
ESA Housing Discrimination
Are you confused, wonder how to deal with this situation? Are you hoping, with just the right “motivation,” your landlord may be willing to agree to your accommodation request.
Often, people may have a viable basis for a housing discrimination complaint, but incorrectly believe crafting/filing a complaint requires a lawyer’s assistance. As a result, concerns over legal fees may keep some from following through with their claim.
Fortunately, our Complaint Builder service helps fill in this gap.