Here at T&H Realty, we highly recommend that rental property Owners allow pets in their homes. It not only puts more money in your pocket, but it opens up your rental property to a larger market. According to a survey conducted by the American Pet Products Association, 68% of U.S. households own a pet.
However, for whatever reasons, you may have decided that you don't want pets in your rental property, and that’s okay too.
So, then the question comes down to, do you have to allow service and emotional support animals in your rental property? The short answer is yes.
These animals and their owners have rights and privileges that you need to be aware of. It’s important to understand Fair Housing laws and how they will affect you.
This blog is only meant to be an informative piece of content and you should consult a real estate attorney before taking any action regarding this issue.
What’s the difference between a Service Animal and an Emotional Support Animal?
First, it’s important that you understand the difference between a service animal and an emotional support animal because they aren't the same thing and do not always have the same privileges.
According to the Service Dog Registration of America a Service Animal is defined as:
“...Dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, and even alerting a diabetic individual when there insulin is low. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. This level of training is the legal requirement to label your animal as a Service Animal…”
Furthermore, there are 7 types of service animals defined in the Indiana Code of law including:
- Hearing animal
- Guide animal
- Assistance animal
- Seizure alert animal
- Mobility animal
- Psychiatric service animal
- Autism service animal
Emotional Support Animals, however, are simply animals that belong to someone with emotional needs. They do not undergo the extensive training that Service Animals do and, therefore, do not have the same legal requirements and are not protected under the Americans with Disabilities Act (ADA).
Does a service animal have to be a dog?
Under Titles II and III of the ADA, only dogs are recognized as Service Animals but an ESA can be any species of animal.
What is a disability according to the ADA?
Under the ADA, you have a disability if you have at least one of the following:
"A physical or mental impairment that substantially limits one or more major activities, a record of such impairment, or you are regarded as having such an impairment."
A physical impairment is anything that affects your body systems and a mental impairment is any mental or psychological disorder.
What is ‘reasonable accommodation’?
Applicants with Service or Emotional Support Animals will submit a request for reasonable accommodation when applying for your property. Even if your lease clearly states no pets allowed, you must comply with the request in most cases.
According to the U.S. Department of Housing and Urban Development, reasonable accommodation is defined as:
"...a change in rules, policies, practices, or services so that a persona with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space. A housing provider should do everything s/he can to assist but, s/he is not required to make changes that would fundamentally alter the program or create an undue financial and administrative burden. Reasonable accommodations may be necessary at all stages of the housing process including application, tenancy, or to prevent eviction."
Do I Have to Allow a Service Animal in my rental property?
Since Service Animals fall under the protection of the ADA, you are legally required by Fair Housing guidelines to allow them into your property. Even if your lease states no pets, you cannot discriminate against prospective tenants who have a Service Animal. Along with that, you are not allowed to charge any extra fees or deposits for the animal and breed, size, or weight limitations may not be applied.
However, if you absolutely are unable to obtain insurance coverage due to the breed of dog, you may be exempt from allowing the prospective Tenant to rent your property.
Do I have to allow Emotional Support Animals in my rental property?
Dealing with Emotional Support or Companion Animals is a little trickier. The laws concerning this class is not quite as cut and dry as it is for Service Animals. It also doesn't help that it is rather easy to obtain documentation deeming your animal an ESA and people frequently abuse the system and take advantage of the lack of regulation.
Under the Fair Housing Act (FHA), Emotional Support Animals still fall under the jurisdiction of reasonable accommodation. If the prospective Tenant can provide medical documentation stating the animal is needed, then you should not and would not be able to discriminate. In most cases, you wouldn't be able to charge any additional fees or deposits either. If they cannot provide documentation, then you are well within your rights to reject the applicant.
Can I ask for official documentation for Service or Emotional Support Animals?
If an applicant requests reasonable accommodation for their Service or Emotional Support Animal in your no-pets property, you may ask the applicant to provide official documentation, of the need for the animal, from the applicant's physician.
However, when doing your due diligence, you must tread carefully. You cannot in any way, shape, or form ask the individual about the nature or extent of their disability. You also cannot ask for the Service Animal's certification. You may only request that the applicant certify, in writing that:
1. The tenant or a member of his or her family is a person with a disability.
2. The need for the animal to assist the person with that specific disability.
3. The animal actually assists the person with a disability.
When dealing with an ESA, make sure you receive official documentation stating the need for the animal. There are hundreds of sites out there now that allow you to 'register' your animal as an ESA by simply paying a fee. For $75, anyone can get their hands on an ESA ID card and certificate so don't be fooled. Fake Service Animals are rampant and cause issues for everyone, especially those who actually need them.
Can I charge the tenant if the Service or Emotional Support Animal damages my property?
If at the end of the lease the animal has done noticeable damage beyond normal wear and tear, you are allowed to charge the tenant for those damages.
What if I refuse a prospective tenant’s request to allow a Service or Emotional Support Animal?
If you reject an applicant's request for reasonable accommodation, you are opening yourself up to major lawsuits. If you reject a prospective Tenant's application after they disclose that they have a Service animal, you better have a very good alternative reason. In the past, a very large majority of these lawsuits have not gone in favor of the Landlord or property Owner.
This is a serious issue and one you absolutely need to consult a lawyer about before making any decisions or taking any actions.
As we have said many times before, it is best to err on the side of caution. Our personal opinion on the matter is that you shouldn't deny these requests as long as the applicant provides the proper documentation.