The United States Department of Housing and Urban Development released new guidelines on emotional support animals and how it relates to Fair Housing on January 28, 2020.
It is not uncommon now for landlords to choose to employ a no pet policy in their rental properties. As a property manager for private landlords, it is a question I now ask with each new property – do you allow pets? The answers typically vary – they will allow cats but not dogs or will allow dogs but not cats. Sometimes they’ll allow small animals confined to a cage but not cats or dogs. It is truly up to them. If they do allow pets, I typically employ a pet fee and additional monthly rent to help balance out the cost of repairs should they be needed when the tenants leave.
In speaking with many potential tenants though, it seems that private landlords do not understand the law when it comes to therapy animals, emotional support animals, and service animals.
According to the United States Department of Housing and Urban Development, nearly 60% of Fair Housing Act complaints concern denial of reasonable accommodations and disability access. Complaints regarding requests for reasonable accommodations of assistance animals is on the rise. These types of complaints are among most of the complaints HUD receives. In additional, most HUD charges of discrimination against a landlord following an investigation involve the denial of reasonable accommodation to a person who has a physical or mental disability that the landlord could not readily observe.
So – as a landlord – what do you need to know?
Types of Service Animals
I think the first thing to understand is the difference between a service animal, emotional support animal, and a therapy animal. Below is a good graphic of the differences.
Often, landlords will question the legitimacy of support animals but are afraid of a Fair Housing violation so they do not ask questions. You are allowed to ask questions so long as you follow the guidelines. When you encounter a tenant with a service animal, please ask yourself this question – is the animal a dog? If no, it is not a service animal but could be another support animal and may need accommodated. If yes, then ask yourself if it is readily apparent that the dog is performing a task or is trained to do something. Readily apparent means the dog is actively guiding a blind person, pulling a wheelchair, or assisting in balance.
If it is a service animal, it is AGAINST THE LAW TO ASK IF THE ANIMAL IS LEGITIMATE. As the landlord, you may only ask the handler two questions: 1. does the your animal provide a service? and 2. What is your animal trained to do?
Never ask the nature or the extent of the disability or for documentation of said service animal or disability.
If the potential tenant has a service dog, under the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA), a reasonable accommodation must be approved.
Emotional Support Animal
Emotional support animals are considered reasonable accommodations according to the ADA and IDEA. There is no law against asking additional questions of the handler once you have established that the animal is an emotional support animal and NOT a service animal. As a landlord, you have a legal right to ask for additional documentation regarding the handlers need for the emotional support animal.
Therapy animals enjoy no protection by the law and as the landlord, you may ask any questions you would like. You may deny leasing or renting to someone with a therapy animal or rent to them without the animal.
Can I charge a fee for service and support animals?
No. You may not charge additional fees or deposits for service and support animals. Any damage done by the handler’s animal though is the responsibility of the handler (tenant).
As an aside to this conversation, I do not suggest collecting a “pet deposit” if you allow pets. Instead, call if a pet fee. Deposit implies that the resident will get the money back at the end of the lease if their animal does no damage where as a fee is simply a fee to have the animal in the dwelling.
How can I tell if a service or support animal is legitimate?
Service animals are easy to recognize. They usually have a vest on and are very obedient. They stick with their handler, are not bothered by loud noises, and do not actively request attention. Service animals will also not beg for food or eliminate indoors.
Remember though – if it is readily apparent that the animal is a dog and is performing an obvious task, do not ask any questions. If you must, you may ask the handler only two questions: 1. does your dog perform a service? and 2. what is your dog trained to do? THAT IS IT.
Still have more questions?
If you have additional questions about service and support animals, feel free to give me a call. Property Management is my bread and butter and I love talking to private landlords about their investments and rentals. In fact, I’d recommend hiring a property manager simply to keep yourself safe from Fair Housing and other landlord / tenant law violations. As the landlord, this is your investment property. You should be collecting on your investment, not worrying about Fair Housing and fretting over your properties.