In February 2019, there was a so-called “epidemic” of emotional support animals in the United States. The relatively new idea did not sprout in popular culture but surge, taking quick advantage of popular cultures tenuous understanding of mental health and the desire to keep Fido at one’s side.
Emotional Support Animals (ESAs) are real and can be great help aiding those with mental disorders from PTSD to depression, giving companionship, comfort, stability, and structure to those who need it most. It’s also been shown that many people are using the term and putting it on their everyday pets to try and reap the benefits. Emotional support animals are in a gray area of the law, making it difficult and even scary to try and navigate around when you must.
You can’t deny someone in a wheelchair a ramp so they can get home, but where does that leave you when a veteran with PTSD shows you their dog? Or just someone, anyone, says their cat is vital to helping their social anxiety? There are steps rental property owners can take to understand and move forward in the residency landscape.
I. Understanding
Service Animals, as defined by the ADA under Title 2 and 3, are any animals individually trained to perform work or tasks for an individual with a disability. Disability, in this case, can include physical, sensory, psychiatric, intellectual or mental. That is the striking difference between a service animal or an emotional support animal – ESAs do not perform work tasks such as leading the blind, pulling a wheelchair, or calming someone during a flashback. ESAs give support or comfort and are therefore not considered service animals under the ADA.
II. The Fair Housing Act
HUD has provided guidance demonstrating how the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) intersect with regards to emotional support animals. The agency has established that those with a proper ESA have the right to live in pet restricted areas with their support animal but does not include the right for an ESA to go anywhere and everywhere with that pet owner. This is just one of a few striking differences between an emotional support animal and a service and working animal.
A property manager, leasing agent, rental property owner, etc., are still required to behave in a similar manner. There is a limit to what you can and cannot ask, and yes, it is safer to proceed on the side of caution. You can inquire on the type of animal, going no further than that, or how many animals, going no further than that. You can inquire on the type of service (IE service animal) and may have to accept the broader answers with little specification.
Section 504 of the Rehabilitation Act of 1973 states that all persons with disability can expect reasonable accommodations. Those accommodations include the right to live with any assistance animal, including emotional support animal. Also, they can/should be given handicapped parking spots, reserved parking close to entry for those with limited motion, curb cuts, wider doorways, braille signs, etc.
FHA does allow for landlords to request extra deposits to cover accommodation modifications. The amount of this deposit depends on several factors, including how much it would cost to change back after the tenant moves out and cannot exceed the total cost of restoring the unit. If the next tenant doesn’t want the reasonable accommodations reverted, the deposit should be returned to the tenant. There can be an extra deposit for the service animal. Housing providers are required by ADA to allow service animal provisions, but that does not leave all housing providers hopeless.
III. Emotional Support Animal Letters
Despite all this, there is one card to play. There is no ignoring the growing number of people allegedly claiming that their common animal is an ESA, regardless of any misbehaviors. There is a number of occurrences to back this up, including an ‘ESA’ on a Southwest Flight biting a six-year-old girl, and an instance where someone attempted to bring a peacock on board as a comfort animal. Those with true disabilities, who need their service animals and ESAs to function with independence and dignity, face these fraudulent claims as a slap in the face, diminishing the true value that the real thing brings. That is why there have been a growing number of states passing laws to make it illegal to falsely claim your pet as an ESA or Service Dog.
It’s always good to check your local government or statewide regulations for penalties for making false claims.
There are several state laws across the U.S. regarding emotional support animals, service animals, and fraudulent representation thereof. Faking a service animal or emotional support animal can have different punishments as laws vary from state to state, but here is a brief overview:
$250 fine for those misrepresenting pets as service animals.
Fines up to and included $1,000 and even half a year in jail.
Misrepresentation of a pet as a service animal is a class 2 petty offense. Those guilty have a scale of fines depending on if they’re repeat offenders, starting at $25.
CS/SB 414 classes it as a second-degree misdemeanor. Those found guilty face jail time up to 60 days and a $500 fine.
Should any able-bodied person utilize a device or dog to mimic being disabled in order to gain better treatments or benefits that a disabled person has can be found guilty of a misdemeanor. There are no specified consequences as of now.
House Bill 1645 would make claiming your pet as a service animal to gain access to otherwise pet free areas a petty offense.
Recent legislature states ‘no pet rules’ do not apply to service animals, including emotional support animals that provide relief from a disability.
Passed in 2018, offenders can spend 30 days in jail, pay a fine, or both.
Misrepresentation in this manner is a class A misdemeanor.
As of 2015, the civic violation has a sliding scale for each occurrence, and the max fine is $1,000.
As of 2016, the violation is classed as a misdemeanor with a max prison sentence of 90 days, a $500 limited fine, and or community service for 30 days.
2017 law states any person guilty of fraudulent behavior and they have committed a class C misdemeanor. They are liable for all damages, and continued misrepresentation will escalate to a class B misdemeanor.
Offender will be judged with sliding consequences. A first time offence will result in a $100 fine, and after that the fine can increase to $1,000 and jail time of 90 days.
Started in 2005, those guilty may be punished up to $500.
Fines not specified for the misdemeanor.
2014 law gives fines between $100 – 500.
Has recorded violations as far back as 1978, stated as a misdemeanor under New Mexico Common Law.
Stipulated offenses with increased punishment for repeat offenders. First time offenders can have a $25 fine, and by the third time, can receive two-week imprisonment with $100 fines.
Class 3 misdemeanor.
Recent Senate Bill 119 will go into effect in July, which allows property managers/landlords to request a doctor’s note in regards to questionable service animals and emotional support animals, on the condition that the disability is not readily apparent.
$300 fine and 30 hours of community service that serves the disabled community. Repeat offenders may have their animals taken from them.
Class C misdemeanor.
Class 4 misdemeanor.
$500 fine for civil infraction.
Misdemeanor offense with a fine up to $750.
Always check local legislature for more specific detail. Some states are leaning the opposite way. For example, Oregon has a bill that could ban any additional charges from landlord to tenant based on pets. Seattle – the city – has a similar mindset. Check your local city laws, and the state as well.
As a real estate agent or rental property owner, this means there is a careful dialogue to ensure someone requesting their ESA join them in renting. You can’t say outright, are you disabled? Or similar questions. You can’t claim someone is faking it, either.
A potential tenant will have proof, and it is a landlord’s right to request this proof. They need to provide an ESA Letter from a licensed health care professional. These letters are reliable through certified therapists.
IV. Scammed Certificates
Because so many people have been abusing the right to ESAs, there are many online ‘certifications’ people have been using to claim their cat, dog, and peacock are proper emotional support animals. There are sites set up just to create fraudulent ‘certificates’ or ESA Letters to declare every pet ever an ESA. To verify an ESA, consider the following:
- A genuine ESA must be written by a licensed mental health professional.
- The licensed mental health professional must be licensed in the state you are living in.
- The ESA is awarded after a mental health screening.
- The letter is not referencing a 'registry' that one signed up for, or requests the person sign up for their services.
- The ESA is 'certified'.
- The service doesn't return requests for validation, verification, or other follow up services.
There is no national, state, or city level registry for Emotional Support Animals. An ID card, dog tags, framed certificate, or anything else does not make a pet immediately an ESA. These are often add-ons used to try and make a false service seem legitimate when it is, in fact, quite the opposite. Bottom line: a registry is not real and does not mean a property owner has to allow that pet in. Landlords can verify ESA letters in a way that does not violate HIPPA or the Fair Housing Act. A proper ESA letter will be on a letterhead, with contact information such as phone number and email, along with the therapist’s license number. A landlord cannot ask the doctor anything directly, but you can verify the license number through any state portal.
Despite the growing popularity of so-called emotional support animals, a landlord is not powerless. There may be a limit to what you can and cannot ask, but all your questions can be answered on one sheet of paper. As a property owner, you don’t need to know what someone’s disability is, but only that the pet and the ESA letter is real. If something fishy is in the letter, that could tell you all you need to know. Call the licensed mental health professional, see if they are in state, if they are verified through state portals, and if there is still doubt, check with a lawyer on local laws.
Do you feel prepared to deal with emotional support animal tenant requests?
Let us know in the comments!
16 Replies to “Are Emotional Support Animals Protected by ADA?”
This blog has very good information related to the Emotional Support Animal. But I want to ask a question, How long will it take to get an Emotional support animal after registration? I hope you will reply to my question soon.
Thank you for your comment, unfortunately your questions goes beyond the scope of what we’re able to answer. How long it may take to get an emotional support animal could have a number of variables including the type of animal, where they are coming from, if you’re registering an animal you already have, the state you’re in, etc.
I’m just a viewer but people can get letters online for pets they already own. These are the fake ones. A landlord has the right to view a letter and require that it’s on letterhead from a local (to the tenant) healthcare professional.
I still have a question. We got an ESA Letter for my wife from her doctor that she has known her whole life. The Doctor knows Her entire anxiety and depression history. The letter has a letterhead, and proper documentation. We then faxed said letter to our landlord, and handed them proof of vaccinations, rabies shot, flea treatment, etc. We moved our new dog in only to find out that the landlord was sending verification to the doctor, that needed a signature. Should we be worried of eviction or anything else?
While we can’t offer any legal advice, based on what information you have supplied, I see no reason to be very worried. It seems you have the documentation required. Your doctor should provide the verification and signature. If it escalates past this, consider contacting an attorney in your area.
All reliable documentation has been provided & verified the tenant is permanently disabled physically & emotionally with physicians states as well as the need for an esa, the lease & a required esa addendum is signed, how many times is property management able to request these documents during tenacy? Also, can they make it a a requirement to renew a lease? What are the laws for this in Wisconsin?
Hi Linda – thank you for reaching out to us on this!
I must preface my guidance by stating that this is not intended as legal advice, and I do advise you to consult with your local legal counsel as a precaution to limit your liabilities.
It sounds like you’ve done some great due diligence in order to meet the requirements of the state and fair housing laws. There are federal fair housing laws which sound like you’re well within compliance of, but states can vary sometimes and I’m not certain whether Wisconsin may have anything unique that would affect this situation. Generally speaking your documentation for ESA should be dated and you should have some period of time it’s valid for before the management company would be able to request an updated copy. Regarding lease renewals this is something that should be specified within the initial lease signing as to whether, upon expiration, your agreement becomes ‘month-to-month’ or has other requirements such as agreeing to sign a new lease and go through another review and approval type of process.
To help, I also found these resources that may provide additional guidance:
> https://wilawlibrary.gov/topics/disability.php#service
> https://docs.legis.wisconsin.gov/code/admin_code/atcp/090/134/08
> https://www.wisbar.org/forPublic/INeedInformation/Pages/Landlord-Tenant.aspx
I live in a domestic violence shelter/transitional housing in AZ. They are stating that my daughter’s ESA has to leave the apartment. If he doesn’t then the whole family has to go. My daughter is 16 and has autism. We have the letter from her physician and the are still trying to have us out. Is this legal? He is a American Stanfordshire terrier. He has duties that he provides for her and it is more than just emotional support. He helps with her meltdowns, anxiety, and can sense when she is about to have a episode. He is not yet certified to be a service dog yet. I requested to allow a in home trainer and was denied?
Is there any possible help for me and my family before we are thrown out on the street with nowhere to go.
Hi Tammie – This is a difficult situation that you’ve described. In Arizona the law tries to provide more balance in rights between the renter and the property owner, and emotional support animals is still a challenging topic because unlike a Service Animal there is generally less documentation and proof to rely on. Nolo is generally a good start point for information about state laws, and I found this reference for the fair housing rights related to ESAs. It looks like with your situation there may be nothing illegal about the property’s right to deny your animal, but you may also have ways of legitimizing your ESA in order to secure housing: https://www.nolo.com/legal-encyclopedia/arizona-laws-on-service-dogs-and-emotional-support-animals.html#:~:text=Pursuant%20to%20the%20federal%20Fair,use%20and%20enjoy%20the%20home.&text=Arizona's%20fair%20housing%20law%20does%20not%20specifically%20mention%20service%20animals.
I am a landlord in CA and one of my tenants have brought in additional 3 dogs in addition to the one mentioned in the lease. He proclaimed that additional 3 dogs are ESAs and provided me with a letter after being called out on brining in additional pets and other violation. I haven’t verified the letter as yet but plan to especially since the tenant had several violations and was not honest about it. I understand that you are not trying to provide any legal advices but would like your two cents on this matter especially since I am new to this type of situation. Thank you.
Hi Grace – Based on your comment it sounds like a lease violation. The ESA letter should be presented prior to the lease signing, or at least presented for approval rather than after the fact to defend what has already happened. That said though, California has some of the most challenging laws defending tenant rights and it’s possible that when the ESA letter was presented would make no difference so long as they have one. In general, people are allowed to have more than 1 ESA. I encourage you to consult with your legal counsel about your rights, but it’s possible you’ll have a difficult legal battle to remove the tenant based on their ESAs.
Hello,
I am in the middle of applying for a rental. The owners approved of my ESA dog but the HOA is fighting me about it. They think the letter is fake due to how recent it is. The information for my therapists group is on the letterhead so instead of asking me anything, they called the group and asked if I was a client there/ how many sessions I’ve had. Once they couldn’t get any information due to HIPAA, they called me asking if I actually go to therapy and how many sessions I’ve had.. when we told them that they are being unethical for trying to get my médical information without my knowledge (and if I’m not mistaken- it is illegal).. they denied (in writing) using my name and claimed they just called to find out the policy. Of course I gave them a call, and there was a note in my file about them called and asking for my information. I know you cannot provide legal advice but I feel like my rights have been violated and now they’re still fighting me and choosing his weight (54lbs) being over the 50 LB weight limit for pets is their next excuse.
Any advise would help.. our signed lease is supposed to start next week.
Hi Alex – this sounds like a challenging situation you’re trying to work through. You’re correct, we’re unable to provide legal advice on these types of situations. Based on what you described it would be best to consult with an attorney specialized in landlord-tenant law. The actions of the HOA raise questions, and a general rule of thumb is to document everything which it sounds like you have on your side in this case. Unfortunately, anything going through the legal system can be time-consuming, and your lease signing is most likely going to happen before an attorney could help with any protections or damages. You might be best served contacting an attorney to discuss your situation, and asking if they would draft something on their letterhead effectively informing the HOA that your case is under review. It may not carry any legal protections, but it may encourage the HOA to work with your situation. Beyond that though emotional support animals is a difficult area of rental housing policy with rules that can vary by state.
Can you request ESA be transported thru common areas ( elevators, lobby,s etc ) in condominiums? We have a few residents that need to carry epi pens due to allergies and are looking to protect them. We had 2 supposedly ESA dogs go at each other in an elevator and it started a whole new situation.
Emotional support animals can be a great companion if you have a mental or emotional disability. Unlike service animals, emotional support animals are not protected under the Americans With Disabilities Act (ADA). Emotional support animals only offer assistance to people who are experiencing mental or emotional disabilities.
The law protects your right to have an authorised emotional support animal if you suffer with psychological and emotional illnesses including anxiety, depression or panic attacks, etc. It is important to understand that, as service animals, emotional support animals are not required to do any particular training. Service animals must be trained to help the handler with their disability, but an emotional support animal can help by simply being there. ESAs are frequently used in Animal Assisted Therapy sessions to help owners who have mental or intellectual disabilities. That is why Emotional Support Animals are also known as Therapy Animals.
I have a Quaker parrot that is almost 22 years old and I have had her since hatching. There were two times that she helped me. I was very ill and at 9am sharp she would come out if he cage and pinch me right for arm. Twice I did not wake up. She went to the phone and tapped on the SOS icon. She was never trained to do that. She learns by watching and listening to me. Late I found a thing on line about a service animal, was I wrong? She also comes off her cage when I am not having a good day and I scratch the back of her neck. I can’t believe Walmart of all places would not let us enter. I have a #5 on the PTSD scale and she is a comfort to me. What can we do to have these antiquated law’s amendmented? Everyone knows me and my parrot, she even sits on my shoulder while surfing. If I go shopping and don’t have her the employees will inundate my with questions, like where is Minimouse, how come you don’t have your parrot? What to do?