ESAs in rental apartments

An emotional support animal is a type of assistance animal that is recognized as a “reasonable accommodation” for a person with a disability under the federal Fair Housing Act.

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The assistance animal is not a pet according to the U.S. Department of Housing and Urban Development (HUD).

There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation:

  1. Does the person seeking to use and live with the animal have a disability—i.e., a physical or mental impairment that substantially limits one or more major life activities?
  2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

“No” to either of the questions means the housing provider is not obligated to make a reasonable accommodation according to HUD. This may mean that the person does not meet the definition of disability or that the assistance animal does not help with symptoms of the disability. If the answer is “yes” to both, then HUD states the FHA requires an exception to a “no pets” rule. The emotional support animal must alleviate, or help, some symptom of the disability.

HUD does not list all the possible disabilities for which an assistance animal could be used. Instead, HUD says the functions include “providing emotional support to persons with disabilities who have a disability-related need for such support.” Emotional support animals have been known to assist disabled individuals with severe depression, generalized anxiety disorder, post-traumatic stress disorder, and many other emotional and psychiatric disabilities.

If a person with a disability needs to use an assistance animal, he or she must first make the request to his or her housing provider or housing board.

HUD says that a person seeking the accommodation must submit reliable documentation of the disability and disability-related need for the assistance animal if the disability is not known or readily-apparent. This documentation is usually a letter from a medical doctor or treating therapist who can establish the disability and need for the assistance animal. The housing provider may not ask for access to medical records or unreasonably delay the request.

Requests for an assistance animal are evaluated on a case-by-case basis. This means that housing providers cannot limit the assistance animal with general assumptions about certain species or breeds. There must be an individualized assessment of the specific assistance animal to determine if it poses a direct threat of harm or would cause substantial property damage.

Once these requirements are met, HUD goes on to to say that restrictions normally applied to pets cannot be applied to assistance animals. Housing providers cannot charge a “pet deposit” for disabled individuals who rely on assistance animals.

Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal.

Depending on what HUD says, a pet number restriction may also be considered a “condition or restriction” that is limited to pets and not assistance animals.

Colorado suit settles for $1 million

A Colorado housing authority accused of violating the federal rights of tenants with disabilities by charging a fee for companion animals has settled a lawsuit for $1 million.

The agreement followed a three-year fight over the Meeker Housing Authority’s efforts to tighten restrictions on keeping pets at the northwestern Colorado property, a federally subsidized apartment building for families. Attorneys said the agency refused to make exceptions for two tenants whose cats and dog were recommended by doctors to cope with depression and anxiety.

“Housing is one of our basic needs, and when that’s taken away from people who do not have a safety net, there’s nowhere for them to go,” said Siddhartha Rathod, the tenants’ attorney.

Colorado District Court Judge William J. Martinez ruled in February that the creation of a $300 fee and the denial of requests for an exception by the tenants with disabilities violated federal law preventing discrimination against people with disabilities.

Mass cheating becomes acceptable

As written in The Washington Post, the effectiveness of emotional-support animals “is poorly substantiated through studies but widely embraced by the public.” And therein lies the challenge.

The 1986 law forbidding discrimination against disabled persons applies to both physical and nonphysical conditions.

The problem began for landlords, airlines and other businesses when pet owners realized that they could game the system. By claiming a disability, pet owners could suddenly not pay a required pet deposit or walk right through no pet policies altogether.

Certainly, many people honestly believe an animal solves their emotional condition, but there are times it’s a matter of confusing personal comfort with medical need.

And now the trend has exploded, leaving landlords with damaged apartments and no recourse, other residents to face unruly or dangerous ESAs, and a cottage industry of low-level fraud where intentionally bright red vests signal a potential lawsuit.

Landlords, and apartment association leaders continue to ask for clarification of the law, and relief from a growing, most untenable situation.


Source: (law) Rebecca F. Wisch, Michigan State University College of Law, ($1 million settlement) Kathleen Foody, AP, Mass Cheating, PRO staff