Tenants and Emotional Support Animals

The use of emotional support animals has been increasing over the past few years and leaving landlords and property management companies desperately trying to find an appropriate method to deal with the increase. 

Some requested accommodations for an emotional support animal are legitimate and some are not.  Unfortunately, there is no risk free way of challenging a tenant who you believe is claiming an animal is for emotional support just so they do not have to pay a pet deposit, pet fees or pet rent.  But, there are policies and procedures that landlords and property managers can implement to try to curb suspected abuse of emotional support animal accommodation requests.

An emotional support animal is considered an assistance animal.  Therapy animals and service animals are also considered an assistance animal.  The term emotional support animal includes animals that provide emotional support to individuals with disabilities that need emotional support.  Now that you know what an emotional support animal is used for, the next step is to know what to do when a tenant tells you that they have an animal that they need for emotional support.  The tenant requesting an accommodation for an emotional support animal must have a disability.  Typically, a person requiring an emotional support animal suffers from a mental impairment, which can be an anxiety disorder, mood disorder, psychotic disorder or a personality disorder.  With a person who has a mental impairment, however, you can’t tell if they suffer from a disability.

A landlord or property manager can request verification that the animal provides emotional support that alleviates one or more identified symptoms or effects of an existing disability.  When a tenant is claiming to suffer from a mental impairment, a tenant may be required provide verification from a physician, psychiatrist, social worker, other mental health professional, or a reliable third-source party who can verify in their professional judgment that the tenant suffers from a mental impairment.  The term “other mental health professional” includes psychologists, mental health counselors and psychotherapists. If the tenant is not providing sufficient information or if the verification is reasonably suspicious, the landlord or property manager can call the verifier to clear up any questions.

Once it is verified that the animal provides emotional support for the tenant, the animal must be allowed.  Any policies or rules prohibiting pets, limiting the number of pets, limiting the size or pets, restricting which apartment units can have pets, or restrictions on the type of breed or size of pets cannot be enforced against the tenant.  A landlord or property manager also cannot require a pet deposit, pet fees, pet rent, additional liability insurance for the pet, or that the tenant sign an indemnification agreement.  Why?  An emotional support animal is not considered a pet.  Under the Fair Housing Act, an emotional support animal is viewed as a device that allows the tenant an equal opportunity to use and enjoy the rental property.

Although a landlord or property manager may have to make exceptions to some policies or rules regarding pets, there are some rules about pets that can be enforced.  Examples of the types of rules that can be enforced are:

• That the animal not disrupt the peace and enjoyment of other residents.
• That the tenant ensures the animal does not pose a threat to other tenants, including ensuring that the animal is up-to-date on shots/vaccinations.
• That the tenant must clean up after the animal and properly dispose of feces.
• That the animal cannot damage property beyond reasonable wear and tear.

When it comes to issues concerning your local or Federal Fair Housing Act, I highly recommend that you seek legal advice from an attorney. Creating forms for assistance animal requests and written policies regarding assistance animal requests are some of the best ways to address such accommodation requests.  In addition, a good source of information and guidance regarding assistance animals is HUD’s Notice on Assistance Animals. For questions, call a Gooosmann attorney at their Sioux Falls, Sioux City, or Omaha office today.