The secret of how tenants can get their pets deemed Emotional Support Animals is out. Tenants have figured out that they can easily find a counselor, psychologist or doctor who will prescribe an ESA for any range of ailments. Most commonly, this is done with an Internet search and the tenant paying an unscrupulous therapy provider for a written prescription. This allows residents to have animals in buildings where pets are generally prohibited.
In addition, tenants falsely claim that their pet is a “Service Animal.” By claiming a disability, pet owners are protected by the Americans with Disabilities Act and can suddenly circumvent “no pet” policies and avoid paying additional pet rent and increased security deposits. However, Service Animals are those who are specifically trained to perform tasks for a person with a disability, whether physical or mental, such as:
- Alerting handlers to allergens, low blood sugar or the onset of a seizure
- Providing physical assistance by pulling a wheel chair, pushing elevator buttons, opening or closing drawers, or helping handlers retain their balance
- Assisting with psychiatric disabilities by reminding handlers to take medication, providing calming physical contact to handlers with anxiety disorders, performing safety checks to alleviate fears for those with PTSD, or intervening in self-destructive behavior
- Communicating important information to those with sensory disabilities like helping a blind handler navigate city streets, or informing a deaf handler of a ringing phone or doorbell.
In California, it is a misdemeanor to falsely and knowingly claim that you are the owner or trainer of a Service Animal, punishable by up to six months in jail and/or up to a $1,000 fine.
Emotional Support Animals are NOT service animals, even if they provide comfort, companionship or protection to those with psychiatric or emotional disabilities or conditions. As such, they are not covered under the laws as Service Animals.
ESAs are not considered “pets,” and therefore are exempt from any building “no pet” policies. While they are not protected by the ADA, they are protected under the federal Fair Housing Act and are protected by the U.S. Department of Housing and Urban Development (HUD).
In order to have an ESA you must have a disability that substantially limits one or more major life activities and will benefit from an ESA. Generally, the claimed disability is psychiatric in nature such as severe depression, generalized anxiety disorder, post-traumatic stress disorder, or one of many other emotional disabilities. If a tenant qualifies under these two criteria, a housing provider is obligated to make a reasonable accommodation to allow the ESA. The tenant must follow the below steps to get their ESA approved by their landlord.
- A person with a disability must first make the request for the assistance animal to his or her housing provider.
- They must submit reliable documentation of the disability and the need for the assistance animal. The documentation does not need to state the specific disability, only that the tenant has a disability and would benefit from an assistance animal. The housing provider may not access medical records or delay responding to the request.
- A housing provider cannot limit the assistance animal based on certain species or breeds. There must be an individualized assessment of the animal to determine if the animal poses a direct threat of harm to other tenants or would cause substantial property damage.
- Housing providers cannot require a pet deposit for disabled individuals who rely on assistance animals.
- An owner cannot put a restriction on the numbers of assistance animals a tenant has.
However, since tenants have become knowledgeable of this loop hole and the ease with which one can obtain an ESA prescription, I am encouraging all my clients to revisit their “no pet” policies. I am finding that once landlords deny a pet request, the tenant returns with documentation claiming their animal is an ESA. Therefore, I recommend allowing pets so that you have more control of the situation and can request additional pet deposits, increased renter’s insurance and increased security deposits.
The effectiveness of ESAs is poorly substantiated through studies but widely embraced by the public, and many tenants honestly believe an animal solves their emotional condition.
It is unfortunate that self-seeking tenants making false claims are poisoning attitudes towards true service animals serving tenants with legitimate disabilities.
Because of the abuse of the ESA system by tenants, there are discussions by the National Apartment Association and National Multifamily Housing Council to the US Department of Housing and Urban Development, which has set the policies, to change.
NMHC and NAA are urging the Department to set the following guidelines:
- Require third party documentation from a provider that has had a therapeutic relationship with the requester.
- Affirm the right of housing providers to verify the authenticity of any submitted documentation.
- Require that individuals requesting multiple support animals show a separate and distinct disability-related need for each animal and allow owners to consider the size of the housing unit to determine the reasonableness of a multiple animal request.
- Specify that the resident is liable for any damages or disruptions caused by the animal.
- Include a safe harbor for housing providers that states they should not be liable for personal injuries caused by an animal that was approved in good faith.
Until this issue gets under control, I recommend modifying your pet policy to allow all pets that are not deemed dangerous breeds by insurers. Your tenant is likely going to get their way by claiming their pet is an ESA, so you might as well reap the benefits of a monthly pet rent.
For more information on updating your buildings’ policies on ESAs and pets, please contact a knowledgeable real estate attorney.