Gerbers Law
November 6, 2017
Landlord/Tenant Law

Originally Posted: October, 2016
Updated: November, 2017

To stay up-to-date on changes in the law, the State Bar of Wisconsin requires attorneys to attend seminars to earn continuing legal education credits. In a fall 2016 course, much of the seminar was devoted to issues on the eviction process. However, what we found most interesting was a discussion relating to Emotional Support Animals (“ESA”) in a “pet-free” rental property.

 

Emotional Support Animal

Photo courtesy of http://offleashk9training.com/

 

Service Animals vs. Emotional Support Animals

Most people are familiar with service animals. These animals go through extensive training to assist their owner. The extensive training that these animals go through is what differentiates them from an emotional support animal.

Service Animals: Service animals are afforded rights under the Americans with Disabilities Act which allows them to accompany their owners in public places like restaurants, hotels, etc. that would normally not allow animals. Service animals are also afforded legal rights under the Air Carrier Access Act, the Fair Housing Act, and the Federal Rehabilitation Act which allows them to accompany their owners in circumstances outside of their rights under the Americans with Disabilities Act.

A service animal has the right to be accommodated in a “pet-free” rental property because they assist with their owner’s disability. These animals perform day-to-day tasks that their owners could not complete on their own. These animals are not considered pets so an additional fee may not be charged and further, breed and size restrictions also do not apply to these animals.

Do keep in mind that when a tenant vacates a property the landlord may charge for reasonable damages that the animal may have caused to the property outside of normal wear and tear.

 

What is an Emotional Support Animal?

Emotional Support Animal: An emotional support animal is a companion animal that provides a therapeutic benefit to an individual with a mental or psychiatric disability. For example, an individual suffering from depression may need an ESA for companionship.

An emotional support animal does not receive special training like service animals. Instead, an ESA’s primary purpose is to provide companionship to an individual.

To qualify for an emotional support animal, an individual must meet the federal definition of disability. That is – any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.

In addition to meeting the definition of disability, an individual may also provide a note from a physician, other health professional, or from a support group indicating that the individual would benefit from an ESA. However, a landlord should not inquire as to specifics regarding the individual’s disability.

 

Emotional Support Animals in “No Pet” Housing

The Federal Fair Housing Act and the Americans with Disability Act allow individuals who qualify for an emotional support animal to keep the animal at a rental property, even though the landlord of a rental property enforces a “no pet” policy. ESA’s are allowed in no pet rental properties because they are considered a reasonable accommodation for the individual’s disability.

According to the US Department of Housing and Urban Development, a landlord should consider the following if a request has been made to make accommodations for a service animal or emotional support animal in a dwelling with a “no-pets” policy (the following section is taken directly from the department’s Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs Notice):

  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?If the answer to question (1) or (2) is “no,” then the FHAct and Section 504 do not require a modification to a provider’s “no pets” policy, and the reasonable accommodation request may be denied.Where the answers to questions (1) and (2) are “yes,” the FHAct and Section 504 require the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.” (2)

This notice goes on to state that the only way a request may be denied is if : (1) the animal provides a direct threat to the health and safety of others, that cannot otherwise be accommodated, or (2) that the animal would provide substantial physical damage to the property that cannot otherwise by reduced or accommodated.

If either of these would be the case, objective evidence would have to be presented. A decision cannot be made based solely upon speculation.

As a landlord, you are allowed to charge a security deposit and, as with a service animal, you are able to request money for damages which may have been caused by the animal after the tenant vacates the property. Like a service animal: pet fees, and breed and weight restrictions also do not apply to emotional support animals.

If you are a Green Bay or Fox Valley landlord and the rules and requirements about animals on your property have you scratching your head, don’t worry our Green Bay attorneys can help! The attorneys at Gerbers Law assist local landlords with any concerns they may have regarding their rental properties. If you are a landlord and would like our legal expertise give us a call today at (920) 499-5700.

 

Useful Links:

  1. For the complete definition and more information visit the ADA website by clicking here.
  2.  view the HUD Document: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs click here.

 

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