Do I Have to Accept Emotional Support Animals (ESAs)

If you are a landlord or a real estate rental agent or property manager, chances are good that you may have a current tenant or applying tenant who says they have an emotional support animal (ESA) and, depending on their individual character, may claim that the owner/property manager must allow them to accept the pet regardless of any personal (owner) objections or other objections (condo rules / HOA rules).  

Is this the truth? While legal documents and government websites tend to make it much clearer about the tenants' rights, what are your right as an owner or property manager? 

First of all, let's be clear about the distinction between a Service Animal and an Emotional Support Animal. Both are considered to be assistance animals. Mass.gov has state guidance on definitions here.

The Americans with Disabilities Act, ADA, defines a service animal here:

"Service animals are 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, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. 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. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

This definition does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act or the broader definition of “service animal” under the Air Carrier Access Act.

Some State and local laws also define service animal more broadly than the ADA does. Information about such laws can be obtained from the relevant State attorney general’s office." 

Massachusetts allows minitature horses to also be classified as service animals. Anything else must be either an ESA or a pet. 

Emotional Support Animals are defined by ADA here as:

"Not all animals that individuals with a disability rely on meet the definition of a service animal for purposes of ADA.  According to the U.S. Department of Housing and Urban Development (HUD), an emotional support animal is any animal that provides emotional support alleviating one or more symptoms or effects of a person’s disability. Emotional support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Emotional support animals are not limited to dogs."

Now that we have definitions out of the way and somewhat clarified, what does this all really mean? 

In practice, real estate agents see a lot of people take advtange of the ESA designation as a means to skirt around no pet policies and rules. It should be much easier to gain an ESA letter (not certification) from various sources, some reputable and authentic and some less reputable and questionable, whereas turning a dog or miniature horse into a Service Animal must, by virtue of its task, naturally be much more complicated, as the tasks they are required to assist with can require significant skill and training. 

Surprisingly, Mass.gov says this about certification for both ESAs and Service Animals:

"Assistance animal owners in Massachusetts are not required to possess any certification or identificiation." 

Wait a minute. What? Yes, I read this three times to make sure I read it correctly. In fact, this is contrary to what I believe I was told several years ago in trainings. The moral of the story, stay up-to-date on the law and err on the side of caution. 

The government website goes onto say: 

"In recent years there has been a proliferation of websites offering service animal and ESA certification, registration or identification cards/vests. However the Department of Housing and Urban Development (HUD) considers these insufficient documentation to support a reasonable accommodation request. There is not currently any recognized official registry or certification program for service animals or emotional support animals."

Despite this, we still regularly see tenants offering to provide a certification. I take this as a sign that the renter is putting their best foot forward. Effort says something about the person who makes it when compared against another in a similar scenario, ceteris paribus, who does not make it.

In this sense, as a real estate agent representing an owner or property manager with a no pet policy, I would review the interest of a potential tenant with an ESA very carefully according to the law, but also perform my due diligence to make sure this is a valid ESA. If the owner has a strong reason for not wanting animals (sometimes they have good reasons and sometimes they have bad or misinformed reasons), then I will check if beyond a reasonable doubt whether the owner must allow the pet in order to be in compliance with Fair Housing Act; otherwise, if the owner can reject the application based on the pet, then they should have that right. Shouldn't they? 

When it comes to discerning the validity of the ESA, I follow the guidance below:

"Reasonable accommodation process for permission to keep an assistance animal

Here are some other things I keep in mind when weighing options about whether to accept a tenant with an ESA? 

1. In Massachusetts, "All dogs, whether pets or assistance animals, need to be registered with their town/city, but there is no official registry of assistance animals." (From mass.gov). Depending on your town, there might be additional requirements. Therefore, the owner may be able to subject the tenant to these requirements prior to accepting an application. During this time, they may receive and accept other complete and non-contingent applications. They may also find that a tenant willing to go through this extra administrative process is indeed going to be a good, trustworthy and resonposible tenant.  

2. An owner apparently cannot charge extra money for a pet if it is an ESA.  The law is seemingly murky around charging pet fees in general; however, despite the landmark decision of Perry v. Equity Residential many large property managers still advertise and charge pet fees. How can this happen? Sherwing Law says here that, yes, Landlords can charge a pet fee. However, exercise caution and do not charge it up front. Seek legal council if uncertain. 

In my practice of real estate, where it becomes a greyer area to me seems to be around adjusting rent up during rent negotiation vs. charging pet rent as a separate fee. I have seen most Landlords and Tenants agree to a higher rent which seems to be the safest way to move forward. It is reasonable on the one hand because it is a fact that certain animals will cause damage and ruin to a property. It is very possible that the Security Deposit will be insufficient to cover this damage, especially if there are additional damages during the tenancy which require the Landlord to seek reimbursement from the Security Deposit. 

3. If the animal presents a reasonable threat or real danger to others or will damages other tenant(s) rights to enjoy their premises (I primarily think of noise and right to quiet living), then it is possoble the animal may be denied upon those grounds. Proof and evidence usually needs to be shown. This can be a more difficult thing to prove. 

4. If it is an owner occupied space, then like many other laws that tend to give leeway and exemptions (yes, even some exceptions on Fair Housing Law), then the owner occupant may have ground for denying the ESA. Be sure to consult with experts in your local area for the best guidance. 

5. Condo boards, though bound to be in compliance with law, may still create a blockade to approving an ESA. 

My advice for owners is to accept the tenant(s) with an ESA assuming all other aspets of the application meet requirements and are satisfactory. If there are concerns about liability, add clauses in the lease which will hold the owner harmless, give the owner a path toward financial remedy and compensation for damages, and put all responsibiilty (or as much as possible) onto the tenant should there be any issues with neighbors, especially where condos and condo boards are concerned.

If there is an issue and the tenant feels they need to move out of the space because they "cannot" occupy it any longer with the pet, the landlord will want to be reasonable, but also protect themself against losing rent in such a case. Make sure your lease break clauses are clear and specific in protecting your interests in receiving rent until a new tenant or, in some cases, sub-tenant is approved.

Please note I am not a legal professional or attorney, nor do I have any training to interpret the law. Please speak with a lawyer regarding any legal questions.

Here are some additional posts on the topic from Bigger Pockets Forums:

• Do Landlords Have to Allow Emotional Support Animals? Know the Laws
• ESA Questions
• The Service Dog Dilemma
• HUD Publication on Assistance Animals - Having an Animal as a Reasonable Accomodation Under The Fair Housing Act

Now, another completely separate topic spinning off of this is looking at how destructive animals and pets can truly be to a property. As you can imagine, there are going to be many opposing views on this topic and it would quickly get heated if put up to debate. My personal experience tells me that it really can go either way and is truly a case-by-case issue entirely dependant on multiple variables including the owner and their own habits in caring for the pet; the type of pet and their health, behavior and activity habits, diet and food regiment; the type of property including flooring, air circulation, and neighbors. 

Most of the time though, having a pet and responsible owner is not an issue. Having three cats myself, I am surprised when any landlord or agent tells me that cats cause damage, except for on carpet which is mostly phased out of buildings anyways. Keep an open mind and be realistic. At the end of the day, honesty and proper planning are the best for the tenant, agent and landlord. Set propert expectations and reasonable penalties/fines for pet damages that go beyond normal wear and tear of the property. I'm in the camp that pet fees are a bit excessive in many cases and squeeze every extra dime out of tenants. I do; however, understand that owners also want to have extra security in the event of damage (And I know, when it happens, it can be expensive to remedy). Finding fair and reasonable terms that all parties will agree to is ultimately the end goal.