Emotional Support Animals are a dumb idea but landlords can’t ignore them

We’ve been hearing lots of questions about emotional support animals in recent years. This article is about the legalities of emotional support animals. What are they, and does your tenant really have one?

“Emotional support animals” are not “service animals”

Most people are familiar with service animals. Service animals are specially trained to help disabled people do work or perform certain tasks. The most common example of a service animal is a seeing-eye dog for visually impaired tenants. Other examples include diabetic alert dogs, seizure alert dogs, and allergy detection dogs.

In contrast, emotional support animals don’t undergo any training because they don’t perform any tasks—all they do is “emotionally support” their owner. The silly thing about this concept is that all pets emotionally support their owners. That’s the entire point of pets.

Unfortunately, due to the over-diagnosis of mental health issues, emotional support animals can now qualify as “assistance animals” under the Federal Housing Act.

Is your tenant entitled to an emotional support animal?

Here’s the short answer: Your tenant is probably legally entitled to an emotional support animal if a qualified medical professional with “personal knowledge” of the tenant states both (1) that the tenant has a disability and, (2) that their animal helps them cope with that disability, and (3) the animal is a kind of animal commonly kept in a household.

If your tenant meets these three criteria, they’re very likely entitled to an emotional support animal. However, there actual criteria are more nuanced and we go through them below.

Step 1: Has your tenant requested a reasonable accommodation under the Fair Housing Act?

The request for a reasonable accommodation may be oral or written. It may be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual or a legal guardian or authorized representative. If your tenant has not requested a reasonable accommodation, they are not entitled to an emotional support animal.

If the answer to the question posed at the beginning of this section is “yes,” move onto the next section.

Step 2: Does your tenant have an obvious disability, or have they provided “information that reasonably supports” that they have a disability?

Under the Fair Housing Act, a housing provider may request reliable documentation when the individual requesting a reasonable accommodation does not have an obvious disability. Acceptable information supporting a disability includes (but is not limited to):

  • A determination of disability from a federal, state, or local government agency.
  • Receipt of disability benefits or services (Social Security Disability Income (SSDI)), Medicare or Supplemental Security Income (SSI) for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency.
  • Eligibility for housing assistance or a housing voucher received because of disability.
  • Information confirming disability from a health care professional – e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse

Some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. Such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a disability-related need for an assistance animal.

By contrast, many legitimate, licensed health care professionals deliver services remotely, including over the internet. One reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.

If the answer to the question posed at the beginning of this section is “yes,” move onto the next section.

Step 3: Has the tenant provided information that reasonably supports that the animal provides therapeutic emotional support with respect to the individual’s disability?

Reasonably supporting information often consists of information from a licensed health care professional – e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse – general to the condition but specific as to the individual with a disability and the assistance or therapeutic emotional support provided by the animal.

A relationship or connection between the disability and the need for the assistance animal must be provided. This is particularly the case where the disability is non-observable, and/or the animal provides therapeutic emotional support.

For non-observable disabilities and animals that provide therapeutic emotional support, a housing provider may ask for information that is consistent with that identified in the Guidance on Documenting an Individual’s Need for Assistance Animals in Housing in order to conduct an individualized assessment of whether it must provide the accommodation under the Fair Housing Act. The lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation.

If the answer to the question posed at the beginning of this section is “yes,” move onto the next section.

Step 4: Is the animal commonly kept in households? For example, is the animal a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal?

If the individual is requesting to keep a unique type of animal that is not commonly kept in households as described above, then the requestor has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. A landlord may request the following documentation:

  • The date of the last consultation with the patient,
  • Any unique circumstances justifying the patient’s need for the particular animal (if already owned or identified by the individual) or particular type of animal(s), and
  • Whether the health care professional has reliable information about this specific animal or whether they specifically recommended this type of animal.

It is also recommended that the health care professional sign and date any documentation provided and provide contact information and any professional licensing information.

If the answer to the question posed at the beginning of this section is “yes,” the tenant is entitled to keep the animal as a reasonable accommodation under the Fair Housing Act.

Closing Thoughts

We think the concept of emotional support animals is dumb. It allows virtually any tenant to circumvent pet restrictions by claiming one of the massively over-diagnosed mental health issues, like depression or anxiety. However, from a legal standpoint, emotional support animals are definitely a real thing. Landlords need to comply with the law unless they want to risk a potential lawsuit from a tenants rights group or a regulatory enforcement action.

For reference, here is the 2020 guidance from the US Department of Housing and Urban Development (HUD) (see part II, page 7). Review this guidance for full details.

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