Pet Policies and Companion or ESA Animals
Can a tenant with a Companion animal, Comfort Animal or an Emotional Security Animal (ESA) override a landlord’s “No pet” policy?
Under Federal Law (the Fair Housing Laws and the Americans with Disabilities Act) there has been an expansion of what types of disabilities can be assisted by an animal companion. Landlords in most cases are required to accommodate those animals the meet the criteria of Emotional Support Animals or Companion Animals in addition to a Service Animal.
What is a Companion Animal or Emotional Support Animal?
Most Landlords understand that a Seeing Eye Dog is a Service Animal, not a pet, and that a rental property has to allow the tenant to rent even if there is a “No Pet” policy and the tenant qualifies otherwise.
What about Companion Animals, or Emotional Support Animals (ESA)?
In 2008 there was a Rule issued by HUD that changed the definition of Service Animals to remove the requirement that the animal have specific training to perform a task. HUD recognized that some people are benefited by the companionship of animals in less obvious ways. Recent studies have shown that animals can help with Post Traumatic Stress Disorder, or help with anxiety, or even assist with chronic pain. The Department of Veterans Affairs has a PAGE dedicated to the healing power of a pet.
There was a lot of discussion about how that might be abused and that pet owners would call any pet a “Service” animal or “Assistance” animal. (you can read all the commentary here: Pet Ownership for the Elderly and Persons With Disabilities; Final Rule).
An emotional support animal (ESA) is a companion animal that a medical professional has determined provides benefit for an individual with a disability. This may include improving at least one symptom of the disability.
A companion animal is a cat, dog or other pet that provides health benefits to a person. Companion animals may relieve stress or serve a more active role.
HUD provided that a Landlord could require reliable documentation of a “nexus”, or a connection between the disability and the animal in order to alleviate abuse of the accommodation requirements. This is the provision that allows a Landlord to require a prospective tenant without a visible disability to provide documentation that the animal is a medical necessity.
But I Don’t Want Pets In My Property!
Under the rules of the ADA and FHA animals that are correctly identified as a Service Animal, or Comfort/Companion/Emotional Support animal is not considered a Pet. If the tenant is otherwise a good fit for your property based on Income, Credit and other criteria you may not refuse to rent based on the ownership of a Service animal.
Under the law you may not charge a pet deposit and you may not charge a pet premium. However, you still have your regular security deposit and in MOST cases that will be sufficient to cover any damages a pet may cause.
Landlord Protections – Tenants Must be Otherwise Qualified
While Landlords may not refuse a Tenant’s application for rental solely because of the Service Animal, the Landlord does not have to accept an otherwise unqualified tenant.
If the Tenant doesn’t meet your income/credit criteria, or has a prior eviction, or wants to put 8 people in your 1 one bedroom studio, this law doesn’t require you to ignore all your other rules.
In addition, not every landlord is subject to this requirement of the Fair Housing Laws.
Landlords Renting Single Family Homes with no Real Estate Agent: Landlords that own/rent a single family home and do not use a real estate agent for the rental process are not subject to the Fair Housing Act rules for companion/service animals.
4 Units or Less, Landlord Occupied Buildings: Buildings with fewer than Five (5) Units and one of which is occupied by the owner generally do not have to comply with this rule.
How to Handle a Call from a Prospective Tenant with a Companion Animal:
Landlords and Real Estate agents should not refuse a showing to a person who identifies themselves as having a Companion Animal or ESA. You might meet them and find out they’re a DREAM tenant! Give them a chance.
Landlords and Real Estate Agents MAY notify the prospective tenant that a letter from a licensed medical professional stating that the tenant has a condition which is helped by the animal is required as part of the application process. The ADA allows the Landlord to request “reliable documentation” that such animal is necessary and provides assistance if the disability is not evident.
Be careful here – if the prospetive tenant has a visible disability you are not permitted under the ADA to require proof of the disability. For example, you may not ask a person in a wheelchair to prove they are disabled, or a blind person to prove she is disabled.
The tenant must meet all other requirements for the apartment as far as credit, income and other relevant factors. You are not required to lower your rent or ignore credit issues or other reasonable factors.
Landlord’s should perform due diligence if they suspect the documentation is from one of the many websites that offer certifications for money without requiring any proof of need.
How to Handle Problems with the Tenant or their Companion Animal
The law does not give a Companion Animal or Service Animal free reign to cause damage, harm or to cause disturbances. Service Animals are specifically trained for their task and will most likely be well housebroken and unlikely troublemakers.
Companion animals, Comfort animals and Emotional Support Animals are not required to be trained for a specific purpose. The ADA states that an animal can be removed from a premise when it is out of control, or if the handler doesn’t take action to control the animal, or if the animal is not housebroken.
If your tenant turns out to be a poor caretaker of it’s companion animal and that animal is out of control and not housebroken, you can take the actions available to you in your Landlord/Tenant laws and you can apply funds from the Security Deposit to damages.
For example, if the companion animal is left alone and barks (not just a yap at the mailman) to the point of disturbing the neighbors, you can issue a notice to the tenant of their violation of the duty to permit Quiet Enjoyment of the premises by their neighbors.
If the Companion animal destroys floors or carpets, digs holes in the yard or tries to break down a fence, or chews casements, windows, blinds, etc, the tenant can cure by repairing to the original condition in which they found it with the use of qualified contractors or vendors, or the Landlord can repair to the condition in which the Tenant found it, document the cost (both of time and materials) and deduct those costs from the Tenant’s security deposit as allowed under the relevant state law.
As the owner of Rental Property there are many factors you take into consideration when accepting or denying a tenant. Remembering that a bona fide Service Animal/Companion Animal/Emotional Security Animal is not a Pet will help you meet your obligations under the law to provide reasonable accommodations where appropriate and necessary.
You are not without protection and the requirement to allow reasonable accommodation does not mean you have to rent to anyone who asks just because they have an animal that qualifies.
For a more detailed consultation call Attorney Sandi Warner at 401-236-8685. At Warner Realty Group we provide a full service Real Estate experience, approaching your investement from all points of the tenant lifecyle.