When an Emotional Support Animal is Part of the Rental Request

Most people know the importance of service dogs specifically trained to provide practical, daily support for people with disabilities. What may be less understood is the emerging use of animals classified as an emotional support animal (ESA). As a landlord, it is perfectly legal to have a no-pets policy for your properties. However, you should be aware of some legal exceptions to this rule. 

What is an ESA?

Assistance animals are not pets. They are animals that work, assist, and provide therapeutic support for individuals with disabilities. Therefore, they can fall under the Fair Housing Act (FHA) requirements if they fit into one of two categories. 

• Service animals: specifically trained for support of a specific disability.
• Other animals: perform tasks, provide assistance, and offer emotional support as needed. ESAs fall under this second category. 

An ESA can be any small, domesticated animal typically kept in the home. These animals help people with mental health challenges like anxiety, depression, or PTSD by offering comfort, companionship, and security. There are laws in place to protect these animals and help their owners lead barrier-free lives.

What Does the Law Say?

The FHA established equal protection for all and protects people who rely on ESAs from discrimination. This protection extends to properties with a no-pet policy. As a result, the FHA allows Individuals to request to keep an ESA as a reasonable accommodation. 

Reasonable vs. Unreasonable

A reasonable accommodation request for an ESA may include:

• A request to live with an assistance animal at property with a no-pets policy.
• A request to waive a pet deposit for an ESA.

By contrast, a request to tear up the back outdoor space in order to plant grass for the dog is most likely unreasonable because it puts an undue financial burden on the landlord. 

Legal Questions

Most verified discrimination charges investigated by the U.S. Department of Housing and Urban Development (HUD) involves housing providers denying a reasonable accommodation to a person with a physical or mental disability. Therefore, knowing which questions to ask a new tenant and what information you may legally use to assess the FHA accommodations you are required to provide is imperative. You must determine if the animal in question is a trained service animal or a support animal.

What is a Service Animal?

The U.S. Department of Housing and Urban Development (HUD) recommends these two questions:

• “Is the animal required because of a disability?” – do not ask about the disability.
• “What work or task has the animal been trained to perform?” – do not ask for documentation.

Grant the requested accommodation if:

• The answer to question #1 is “Yes,” and
• Work or a task is identified in response to question #2

This animal qualifies as a service animal.

If the answer to either question is “no” or “none,” the animal does not qualify as a service animal. But, it may qualify as a support animal. HUD offers guidance on this as well.

What is a Support Animal?

Under the FHA, a disability is a physical or mental impairment that substantially limits one or more major life activities. Impairments that form the basis of an accommodation request are often not observable. Housing providers are not entitled to know the specific diagnosis; however, they may request documentation from a licensed care provider.

Questions a landlord can ask when establishing the basis for accommodating a support animal:

• Does this person have a disability? Landlords may ask for proof that the tenant qualifies as disabled but not the specific diagnosis.
• Does the animal assist with the disability? ESA letters are written by licensed mental health professionals, such as:
  • psychologists
  • licensed nurse practitioners, clinical social workers (LCSW), and marriage & family therapists (LMFT)
  • mental health counselors
  • medical doctors
  • Tenants can obtain an ESA letter online or in person. However, for Oregon residents, a healthcare professional licensed to practice in Oregon should write an sign the letter.
• Is the request reasonable? If the tenant has met the requirements for the first two questions and the accommodation does not cause the landlord financial hardship, then the request should be granted. Section 504 in the HUD FHA FAQ offers a great resource for determining reasonability. 

Verify an ESA Letter Without Violating Federal Law:

While it may be tempting to contact the professional listed on the ESA letter you received, attempting to do so may be considered a violation of the law. Here are two things you can do to verify the letter’s veracity.

• Verify the professional licensing number – visit the state website for clinical discipline and enter their licensing number.
• Ask the tenant to have their medical professional complete a Reasonable Accommodation Form.  

Exemptions From ESA Rentals.

There are a few situations where a landlord may be exempt from renting to a tenant with an ESA. They include, 

• The rental property owner occupies one unit in a building with four units or less.
• HUD determines that ESA accommodations will place a financial hardship on the landlord.
• The ESA animal causes damage or threatens the safety of other tenants.
• The animal is too large for the facility. 
• The owner owns no more than three single-family rentals and does not use a realtor.
• The tenant does not meet other qualifications in the standard lease agreement for all tenants.

Get Help Sorting Out the Details

It is easy to get overwhelmed with the legal minutiae surrounding ESA requests. The team at Rent Portland Homes by Darla Andrew has the expertise to manage the details involved in communicating with your tenants and sorting through any ESA requests. Call or text Darla today at 503.515.3170 to learn how we provide the support you need to enjoy the rental process without any of the headaches.