Sifting Through Truths & Lies About Emotional Support Animals

Emotional Support Animals get a lot of attention these days as one of the hot new topics for landlords. They are relatively new on the legal horizon, so not a lot is publicly known about what’s right and what’s wrong when it comes to certain assistance animals, even by judges and attorneys. Many people have heard of ESA’s, but not many people understand what the laws say because the laws (and their interpretations) vary. We have the federal government saying one thing, the state government saying another, and the landlords of individual leases telling a third story. So, who do we listen to? Who is right, and how do we navigate through all of their interpretations of the laws?

Lets say that you’re in the buy and hold business, and you’ve recently purchased a home for residential leasing. You have possession, you’ve made repairs, and after a thorough search and ample screening, you’ve found a tenant to move into the home. However, after six months, you find out that they have a dog, although the lease prohibits pets. As part of your tenant protocol, a written notice of default is issued, and you inform the tenant that the unauthorized animal must be removed from the property in three days. They quickly reply, “Pet? Oh, this is no pet. This is my medical device. This is an emotional support animal. Fluffy makes me feel better. By law, you can’t charge me a deposit, you can’t kick me out, and you definitely can’t make me get rid of my ESA, as I have rights under the Fair Housing Act.”

There certainly are rights that tenants have that apply to their medical needs, and The Fair Housing Act does allow for an Emotional Support Animal as a medically sufficient form of treatment. So, would it be considered as an invasion of the tenant’s privacy if a landlord were to ask any medical questions? How do you know if Fluffy is a legitimate Emotional Support Animal at all? Lastly, how does someone test, confirm, or challenge this claim? This is where good information is key.

Only certain questions are allowed when inquiring about how a tenant’s ESA assists them. Relatively perceptible disabilities, such as blindness, should not be inquired about. However, invisible disabilities, such as emotional, psychological, mental, or neurological conditions are indistinguishable and may raise some questions as to why a tenant requires an ESA. Landlords may ask why a tenant requires an ESA and how the animal assists with the tenant’s disability, but landlords can never demand any information about specific medical diagnosis or disabilities.

There are no licensing requirements for emotional support animals because we're just not there in the law yet. So, don't require something from your tenant that simply doesn't exist. There are plenty of people who say, “I want to see some documentation on Fluffy’s training.” It is likely that Fluffy did not go through any training. However, if a licensed health care professional has confirmed that the animal satisfies the tenant’s legitimate medical need, the proof requirement is met once the tenant provides you ESA Letter. So, how would a tenant obtain and provide that?

I’ve seen lots of eye-rolling around the state and around the country due to statements like, “I can’t go into a restaurant without Fluffy because I've got needs which affect my state of being, and Fluffy helps with how I cope emotionally in those environments.”

Well, the truth of the matter is, many times these needs are legitimate, and during these times the animals perform a vital service. It’s not up to us to diagnose anyone unless we are actually licensed health care professionals ourselves. However, just like most landlords are not trained to diagnose mental wellness, tenants cannot diagnose their own medical needs or determine their own treatments, particularly those involving this intersection of health and the law. Federal law requires landlords to provide a reasonable accommodation. Even if the presence of an animal is otherwise prohibited in the lease, when the tenant makes a legitimate request for one, no landlord is exempt from complying.

But if neither the landlord nor the tenant can adequately make a determination as to the need for an assistance animal, or the suitability of a particular animal in question, where should the parties turn?

Under the Fair Housing Act, a housing provider may request reliable documentation when an individual in need of an accommodation has a disability (or a disability-related need for an accommodation) that are not obvious or otherwise known. Information provided by the Department of Housing and Urban Development, also known as HUD, illustrates that “such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal…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.” 

The Texas Department of Housing and Community Affairs provides further explanation: “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.” These health care professionals’ opinions can establish the need for such assistance, and the qualifications of the animal designated to serve that need.

However, if there's nobody on the planet who is qualified as a licensed health care professional and who has stated- unequivocally- that this person needs this service, then it’s not real, and it doesn't exist. In this scenario, the accommodation requested by the tenant can be denied.

But let's say some qualified individual does produce a written statement. Consider a Dr. Joe out of Dallas where the tenant used to live. Now, the tenants live in Houston, but Dr. Joe out of Dallas confirms, “Yes, this is my patient. And my patient Linda has a need which requires an emotional support animal.” This statement does sufficiently establish that a medical need exists for this individual, but that's just phase one.

Phase two is equally as important and poses the question: Does Fluffy satisfy this need? If both phase one (where an individual is diagnosed and meets the qualifications for an ESA) and phase two (where the ESA suitably satisfies the needs of the medical requirement) pass the test, then it is as simple as an ESA letter from a licensed health care professional being provided to that individual.

However, even if the tenant has met both requirements mentioned here, there is still a chance that the accommodation can be denied. Additional information from HUD provides that a housing provider may deny a request if that provider is able to prove that granting the request would cause an undue burden on the provider (Landlord). Among these are proof that:

• Granting the request would impose an undue financial and administrative burden on the housing provider
• The request would fundamentally alter the essential nature of the housing provider’s operations
• The specific assistance animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat
• The request would result in significant physical damage to the property of others despite any other reasonable accommodations that could eliminate or reduce the physical damage

Things get complicated when the tenant has not just a Fluffy, but also Scruffy, Snuffy, and a Bluffy. You probably didn’t expect that a tenant would require four emotional support Rottweilers. In this case, refer to the ESA Letter from the licensed medical professional. If the letter only names Fluffy, or if it refers to only one emotional support animal, that's a key detail.

If a tenant really only has authorization for a single animal, then the rest of these animals are pets subject to the limitations of the lease. Because one is a medical device and the rest of them are regular pets, you can prohibit the tenant from keeping the additional animals, you can charge pet deposits for the rest, and you can issue notices of default.

Some tenants are going to make requests which appear perfectly valid on paper and, even after proper vetting, are found to be legitimate. But the law has limits on the burden that such a request might also have on the landlord. Yes, sometimes, you're going to get a doctor who says, “These four cats are essential for the medical wellness of my patient.” Some might call that into question and may think that such an accommodation goes beyond what may be reasonable, but that's where a lawsuit may be implemented.

Yes, the Fair Housing Act and Texas laws offer certain limits for which housing providers are subject to the constraints of the Fair Housing Act. This means that the following housing providers are not actually confined to Fair Housing Act requirements:

• Owner-occupied buildings with no more than four units
• Single-family housing sold or rented without the use of a broker, 
• And housing operated by organizations and private clubs that limit occupancy to members
• Housing developments that qualify as housing for persons age 55 or older may be exempt from the provisions barring discrimination on the basis of familial status

While these options seem pretty straightforward, it is highly recommended that you seek out legal counsel before relying on your own legal opinion regarding when or if any of the exemptions listed above might apply in your case. Certainly, if you are unsure, it is encouraged that you err on the side of following the law rather than denying a rental due to the belief of an exemption from the Fair Housing Act applying in a specific case.

Make sure that you are aware of what the law requires: if it's not open and obvious, you can ask legally acceptable questions. Ultimately, if you've got no documentation stating that your tenant lawfully requires an ESA, delivering a notice of default or a notice to vacate is always an option, and you are at the liberty to enforce the lease as stated. Additionally, if the tenant’s request creates an undue burden on the landlord, or if an exemption from the Fair Housing Act applies, then even a legitimate request for an emotional support animal can be denied.

The Law Office of Ernie Garcia, PLLC stands out for its unparalleled expertise in landlord/tenant law, providing essential support to Texas landlords, apartment communities, and real estate investors. Whether it’s delivering legal notices, filing lawsuits, or defending landlords against tenant lawsuits, Ernie’s team has done it all. Very few attorneys know landlord/tenant law the way they do.

Ernie Garcia, CEO and founder, is a distinguished trial attorney with over 14 years of real estate law experience throughout the State of Texas. He is a former English teacher in HISD, and father of 5. In his spare time, he enjoys spending time with his family, writing, traveling and hanging out with his dog, Jack. He and his team are passionate about educating Landlords on how run their rental businesses at peak profitability.

The Law Office of Ernie Garcia, PLLC
2626 S. Loop W., Suite 630
Houston, Texas 77054
Phone: (832) 305-7694

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