The short answer is, yes. It’s a confusing topic for landlords, renters and other interested parties, because most people are at least somewhat familiar with the subject of service animals and their protection under the American with Disabilities Act (ADA) and the fact that emotional support animals (ESAs) are not protected. So, for instance, restaurants are not required to allow emotional support cats, but they are required to allow seizure alert dogs. When it comes to housing, though, the protections are much broader, as they should be. The ADA still applies, but so does the Fair Housing Act (FHA) which requires landlords to permit assistance animals, including ESAs, and states that any type of animal can qualify, not just dogs.
Medical Requirement
Under the FHA, a landlord can require documentation showing that you do have a disability and that you need your assistance animal to help you with some aspect of your disability. A letter from your doctor is adequate. Landlords are not allowed to request your medical records or to speak to your health care professional directly.
Animal Documentation
No special training or certification is required for your animal to qualify as an assistance animal. Landlords cannot require or even request certification. However, landlords can require documentation showing that your service or assistance animal has the legally required vaccinations.
Service Animals and Assistance Animals are Not Pets
Assistance animals and service animals are not pets. Landlords that charge a pet deposit and/or fees cannot apply these charges to service or assistance animals. Animal owners are responsible for any damage caused by the animal.
Owners are also responsible for cleaning up waste and keeping their service and assistance animals under control. Landlords are not required to tolerate tenants who fail to do so. Letting them runs loose or bark excessively can be grounds for eviction, just as with pets.
Landlords cannot impose breed, size or weight limitations on assistance animals. Local breed bans do not apply to service animals or assistance animals and are not an excuse for landlords discriminate based on breed. Nor do breed or size constitute safety threats. Safety threats can only be based on the individual animal’s behavior and history.
Service animals have more rights than assistance animals. ESAs are assistance animals, not service animals, but landlords need to be aware that there are also psychiatric service animals. Landlords must allow service animals in public areas, such as pools or community rooms, but do not have to allow assistance animals in these areas.
Why Landlords and Tenants Need Legal Advice
There are multiple, overlapping laws that apply to the subject of service animals and assistance animals in housing. Neither landlords nor tenants should try to figure it out on their own. Many of these laws appear to contradict each other and, as with all things legal, there are some exceptions to the basic requirements.
As a tenant, you need to know your rights and if the housing you are in or trying to move into is covered. For example, the FHA covers most housing, but there are a few exceptions including:
- Owner-occupied buildings with no more than four units
- Single-family housing sold or rented without the use of a broker if the private individual owner does not own more than three such single-family homes at one time
- Housing operated by religious organizations and private clubs that limit occupancy to members
Also, as a tenant you need to understand your responsibilities and the limitations that apply to your rights. For instance, assistance animals do not have all of the rights granted to service animals, even though landlords must permit them in your home. And, landlords are not required to do things like build a fence specifically for you and your service animal. As the owner, you are still responsible for cleaning up after your animal and making sure that your animal behaves properly, even if it is a service dog or assistance animal.
If you are a landlord, you need to consult with an attorney to avoid running afoul of the many federal, state and local discrimination laws, and to understand when you can or cannot be held liable if a tenant’s service or assistance animal hurts someone. Don’t assume that you can turn a tenant away because you fall under an exception to one or more of the laws that require landlords to allow these animals. You may still be required to do so by another law. The most common mistake is understanding your rights and responsibilities under the ADA and not realizing that you must also comply with the FHA.o learn more about your rights and responsibilities regarding service animals and assistance animals, as a tenant or landlord, please call or contact us today and schedule your confidential initial consultation.