Emotional Support Animals
Emotional support animals (ESAs) have become a much talked about topic in recent years. From a peacock boarding a plane, a 95-pound pig in a dorm room, to a recent emotional support dog attack, the news has been buzzing with stories about ESAs. A lot of news and articles concerning ESAs wobble between fact-based journalism, opinions regarding the validity of ESAs, and blurring the difference between a support animal and service animal. This update will discuss ESAs in regard to housing.
Housing
The U.S. Department of Housing and Urban Development (HUD) oversees the FHA and performs investigations based upon discrimination under the Act. The FHA requires that a landlord make a “reasonable accommodation” for assistance animals, including ESAs. A housing provider should only take two questions into consideration when considering a request for an assistance animal:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?
If the answer to either of these questions is no, then a provider is not obligated to make the accommodation. If both answers are yes, then the FHA requires a waiver of any no pets rule, subject to certain restrictions, as well as any pet deposit. This does not mean that there are no fees associated with an assistance animal, for instance, any damage caused by the animal to the property would still be the responsibility of the owner.
A request for an assistance animal should be made, preferably, before moving into the property. An assistance animal should not be moved into the premises before the approval of the housing provider has been given. HUD does require that “a person seeking the accommodation must submit reliable documentation of the disability and disability-related need for the assistance animal if the disability is not known or readily-apparent.” This is usually accomplished through a letter from a medical professional or therapist. You do not have to provide access to medical records.
Each request for an accommodation is reviewed on a case-by-case basis and answering yes to both questions above is not mean a guaranteed approval. A housing provider may not make breed or size restrictions apply across the board to assistance animals, but the provider may make an individualized assessment of the animal being requested. If the provider determines that the animal poses a threat (based on disposition, the type of animal, or other reasonable factors) or that the animal may cause substantial damage to property, the provider may deny the request. Again, this is a “reasonable accommodation”, meaning that a housing provider wouldn’t have to install a barn or a lift to accommodate an
Potential changes
Laws relating to ESAs are currently undergoing enhanced scrutiny. Last year there was a proposal to tighten the requirements on who can certify that an ESA provides a benefit related to housing. This rule was withdrawn, but only after substantial outcry and could potentially be reintroduced. The number of investigations into misrepresenting animals as service animals has also dramatically increased, and now 23 states have passed laws criminalizing the misrepresentation of a service animal. With the increasing number of requests for accommodations in housing, it is very likely that HUD will issue new guidance on ESAs in the near future.
With so many individualized factors in an issue relating to emotional support animals and service dogs, it is advised that if you have any problems, that you contact an experienced attorney as soon as possible. Students should schedule an appointment to speak with one of our attorneys regarding the specifics of your case.
Housing
The U.S. Department of Housing and Urban Development (HUD) oversees the FHA and performs investigations based upon discrimination under the Act. The FHA requires that a landlord make a “reasonable accommodation” for assistance animals, including ESAs. A housing provider should only take two questions into consideration when considering a request for an assistance animal:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?
If the answer to either of these questions is no, then a provider is not obligated to make the accommodation. If both answers are yes, then the FHA requires a waiver of any no pets rule, subject to certain restrictions, as well as any pet deposit. This does not mean that there are no fees associated with an assistance animal, for instance, any damage caused by the animal to the property would still be the responsibility of the owner.
A request for an assistance animal should be made, preferably, before moving into the property. An assistance animal should not be moved into the premises before the approval of the housing provider has been given. HUD does require that “a person seeking the accommodation must submit reliable documentation of the disability and disability-related need for the assistance animal if the disability is not known or readily-apparent.” This is usually accomplished through a letter from a medical professional or therapist. You do not have to provide access to medical records.
Each request for an accommodation is reviewed on a case-by-case basis and answering yes to both questions above is not mean a guaranteed approval. A housing provider may not make breed or size restrictions apply across the board to assistance animals, but the provider may make an individualized assessment of the animal being requested. If the provider determines that the animal poses a threat (based on disposition, the type of animal, or other reasonable factors) or that the animal may cause substantial damage to property, the provider may deny the request. Again, this is a “reasonable accommodation”, meaning that a housing provider wouldn’t have to install a barn or a lift to accommodate an
Potential changes
Laws relating to ESAs are currently undergoing enhanced scrutiny. Last year there was a proposal to tighten the requirements on who can certify that an ESA provides a benefit related to housing. This rule was withdrawn, but only after substantial outcry and could potentially be reintroduced. The number of investigations into misrepresenting animals as service animals has also dramatically increased, and now 23 states have passed laws criminalizing the misrepresentation of a service animal. With the increasing number of requests for accommodations in housing, it is very likely that HUD will issue new guidance on ESAs in the near future.
With so many individualized factors in an issue relating to emotional support animals and service dogs, it is advised that if you have any problems, that you contact an experienced attorney as soon as possible. Students should schedule an appointment to speak with one of our attorneys regarding the specifics of your case.