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.

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