Although the American Disability Act doesn’t consider the Emotional Support Animals (ESAs) Service Animals, under the Fair Housing Act they are classified as Assistance Animals, and as such they should not be treated as pets. They are not subject to a pet deposit, pet fees, breed, and weight restrictions.
I recently received this email from a new landlord:
Good morning! I have a prospective tenant who has THREE emotional support dogs. Am I legally able to collect a security deposit for these animals? I’m finding conflicting information everywhere I look online.
Because this is a question that’s confusing to many, I wanted to address it in an article and hopefully give some definitive answers to anyone who is wondering about the same thing.
I think the confusion arises from the different classifications and treatment of Emotional Support Animals under the American with Disability Act (ADA) and the Fair Housing Act.
What is an Emotional Support Animal?
Emotional support animals (ESAs) refer to dogs and other pets that provide emotional support and comfort to their owners on a daily basis. ESAs legally must be prescribed by a licensed mental health professional like a therapist, psychologist, or psychiatrist.
According to the American Kennel Club (AKC)
Are Emotional Support Animals Considered Service Animals Under the American Disability Act (ADA)?
According to ADA, emotional support, therapy, comfort, or companion animals are not service animals under ADA. Here is a link to the Department of Justice Q&A.
Service animals have to be trained to perform actions in order to help the person with a specific disability. They are not considered pets so everything related to having a pet doesn’t apply including pet deposit.
Emotional Support Animals are not Classified as Service Animals under ADA but they are Considered Assistance Animals under the Fair Housing Act
What does this mean for landlords and property managers?
Emotional Support Animals are considered Assistance Animals under the Fair Housing Act and they should not be treated as pets for the purpose of the lease, deposit, fees etc.
Here is a direct quote from HUD:
Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.6 There are two types of assistance animals: (1) service animals, and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as a “support animal”).7 An animal that does not qualify as a service animal or other type of assistance animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies. A housing provider may exclude or charge a fee or deposit for pets in its discretion and subject to local law but not for service animals or other assistance animals.
HUD
How Can a Landlord Determine if an Animal is an ESA?
If you can observe that the renter has an obvious disability, then there is no need to ask; however, for non obvious disabilities you can request documentation which can be:
- 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.
Make sure you give a renter enough time to give you supporting documentation.
Important
1. People with disabilities are not required to make a written request for reasonable accommodations but are encouraged in order to avoid miscommunications.
2. The request can be made before or after the animal is acquired.
3. In the case of ESAs if the disability is not observable, a landlord may request additional information “ Certain impairments, however, especially including impairments that may form the basis for a request for an emotional support animal, may not be observable. In those instances, a housing provider may request information regarding both the disability and the disability-related need for the animal. Housing providers are not entitled to know an individual’s diagnosis” HUD
If you would like to know more about how to access the person’s need to have a service or emotional support animal, here is HUD’s guidance.
