A follower of my blog called Riley & Ahler, P.C. and requested I write something about Landlord rights when it comes to tenants with support animals. It made me realize what a common issue this is.
Our office has received numerous telephone calls over the last few years from both landlords and tenants alike asking if a tenant’s support animal trumps a “NO PETS” clause in a lease agreement.
As with any legal issue there are multiple points to consider:
First and foremost, if you are an individual that has a certified and legitimate emotional support animal you should disclose that upfront when negotiating a lease with a landlord that does not allow pets.
Before we dive too deep into the legal issues surrounding this topic, let me first address what an emotional support animal is:
An emotional support animal, also known as an "ESA” is a dog or other common domesticated animal that provides support to its' disabled handler. The use of the ESA is designed by law to provide companionship and affection to help individuals deal with the side effects of a mental disability or condition. However, Federal law requires that the owner of an ESA be diagnosed with a qualifying mental disability in order for the ESA to be legitimate.
Emotional support animals are considered "pets" except during residential occupancy and travel.
It is important for landlords to know the difference between an ESA and a services animal.
Under Indiana Law, a service animal is an animal trained as (not an exhaustive list):
1. A guide animal (a guide dog to assist a visually impaired person)
2. A hearing animal (a hearing dog, that alerts its handler to important noises, like the phone, doorbell, or alarm)
3. A Psychiatric assistance animal ( such as an animal that interrupts self-destructive behavior, reminds its handler to take medication, or calms an anxiety attack with soothing pressure)
4. A seizure alert animal (animal that warns its handler of an impending seizure, and may also protect its handler during a seizure.)
5. Mobility Animal
6. An Autism service animal.
Emotional support animals are animals that belong to someone with emotional needs. They do not undergo the extensive training that services animals do and therefore do not have the same legal requirements and are not protected under the Americans with Disability Act (ADA).
What tenants need to know is that they have rights if they are disabled but so does the landlord! It is true that under Federal Law landlords cannot evict or discriminate someone based on their mental disability. To qualify under federal law, a person must have a qualifying disability, the landlord must know that the tenant has a disability and therefore waiving a “no pets” policy must be necessary to allow the tenant an equal opportunity to use and enjoy the rental unit. Courts have held that a waiver of a “no pets” provision is a reasonable accommodation for a mentally disabled person who needs an emotional support animal to live. Under Federal Law a “reasonable accommodation is defined as follows:
“…a change in rules, policies, practices, or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space. A housing provider should do everything he or she can to assist but, she or her is not required to make changes that would fundamentally alter the program or create an undue financial and administrative burden. Reasonable accommodations may be necessary at all stages of the housing process including application, tenancy, or to prevent eviction.”
What tenants need to understand is that all of the responsibility DOES NOT rest with the landlord. The Tenant has a duty to request a waiver of the “no pets” policy and should provide a note from a physician to inform the landlord of the disability and request the accommodation. Mere emotional distress that would result from having to give up a beloved animal is a non-qualifier under federal law.
Landlords should know that they will not always be required to waive a “no pets” policy if doing so would cause a great financial or administrative burden on the landlord. Moreover, a qualified ESA does not let the tenant off the hook if the ESA causes damage to your property. If an ESA dog chews up your trim or ruins carpet, the tenant will still be liable for the cost and expense of that damage. A landlord can also consider the safety of other tenants when deciding to waive a “no pet” policy.
Unfortunately, like anything else, people misuse and abuse ESA designations and harm not only landlords but other people who actually need an ESA. Landlords have the right to ensure the nee
d for an ESA is legitimate. If a tenant tells you that they have an ESA you may ask the applicant to provide documentation but you may not ask the individual about the nature of their disability nor can you ask for the service animal’s certification. You may only ask that the applicant certify that: 1. The tenant or member of his or her family is a person with a disability 2. The need for the animal to assist the person with the disability. 3. The animal actually assist the person with a disability.
Unfortunately, there are web pages that allow people to obtain a fake service animal certification for a small fee. In 2018, the Indiana state legislature passed Senate Bill 240 which now allows landlords ask more questions. Specifically, the new law provides that an individual with a disability that is not readily apparent who submits a request for an emotional support animal that falsely suggest the individual has a disability that entitles the individual to the use of an emotional support animal in a dwelling commits a Class A infraction.
Should this situation arise for you, whether you are a tenant with a disability or a landlord, you should consult a licensed attorney who may be able to advise you on the best way to proceed.