Emotional support animals (ESAs) and service animals are being discussed more and more. Whether you have seen them walking around your local grocery store with their owners or you've sat next to an emotional support cat on a plane, you have likely become more familiar with these animals. So, what exactly is an emotional support animal? Is there a difference between ESAs and service animals?
The topic is especially important for those looking to lease their properties for residential use. As a real estate investor, it's important to know how ESAs impact your business. If you operate rental properties, you need to become familiar with the regulations to ensure legal compliance. Keep reading to learn how to accommodate emotional support animals or respond appropriately to tenants when creating a lease for a residential rental property.
What Is a Service Animal?
According to the Americans with Disabilities Act, or the ADA, service animals are defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." These types of animals are protected by the ADA, meaning that most businesses and rental properties must accommodate these animals—even if they don't allow pets on the premises.
However, it's important to note that the ADA specifies that service animals are dogs. Therefore, should a resident or potential resident approach you with an inquiry about a service animal that is not a dog, it's worth consulting your attorney to determine the best way to proceed.
Service Animals Have Special Training
As a service animal, a dog has to have been trained to take immediate action as needed to assist a person with a disability. For example, many people think of a service dog as a guide dog for those who are visually impaired. However, service animals can perform a variety of tasks for different impairments, including opening doors, fetching critical items, or notifying a person with diabetes when their blood sugar is nearing low or high levels. In addition, some service dogs alert people when specific allergens, such as peanuts or eggs, are in the area. Other dogs are trained to recognize when a seizure is coming.
Under the ADA, service animals are not required to wear any sort of identifier such as a vest, harness, or ID. Additionally, there are no restrictions regarding dog breeds for service animals.
When investing as a rental property owner, it's critical to remember that housing programs run by local and state governments, as well as those by public housing authorities and universities, fall under the ADA. Additionally, the Fair Housing Act is in effect for nearly every type of private and public housing. The Fair Housing Act states that housing providers must allow the use of animals that work and offer aid to persons with disabilities, as well as provide emotional support to relieve symptoms of a disability.
What Is an Emotional Support Animal?
Emotional support animals assist their owners in dealing with difficulties presented by emotional and mental health conditions such as anxiety, depression, PTSD, and more. These animals offer help to their owners through their presence alone, instead of performing specific tasks that help with a physical condition. This is a crucial difference from service animals. ESAs do not have to go through training of any kind. Instead, being there for their owners is their service, as they provide emotional comfort and relief from mental struggles.
Unlike service animals, not all ESAs must be allowed in public places, though they can be allowed in airports and on airplanes, should their owner fill out the necessary documentation. Under the previously mentioned Federal Fair Housing Act, landlords cannot discriminate against individuals with disabilities when leasing property. This means that limitations surrounding pets, pet sizes, and pet breeds are void when someone has requested accommodation for an ESA. Landlords also are not allowed to charge a pet deposit for ESAs.
As we discussed, an animal must be a dog to be classified as a service animal. However, ESAs do not have this requirement and can be any type of domesticated animal—a dog, cat, hedgehog, rabbit, rat, ferret, and more.
The absence of having specifically trained duties is the critical difference between an emotional support animal and a service animal. Sometimes, this confuses property owners when navigating an emotional support animal request without violating the law.
What Do Federal Laws Say?
There are specific federal fair housing laws that all landlords should know and follow. These laws prevent landlords from taking discriminatory action against tenants or possible tenants, including denying a service animal or ESA for tenants when not offering pet-friendly properties.
To fully understand the law and avoid legal issues, rental property owners should consult their attorneys and follow these critical regulations:
- Landlords cannot forbid a legitimate service animal or ESA from living in a rental unit.
- Landlords cannot charge additional rent or security deposit due to a tenant owning a service or emotional support animal.
- Landlords cannot discriminate against pet breed or weight regarding service or emotional support animals.
In most cases, these laws must be obeyed unless:
- A landlord lives in the rental unit, and they, or an immediate member of their family, has an allergy to the service or emotional support animal.
- That specific animal has previously posed an aggressive threat to someone. This exception only applies to the specific support or emotional support animal—not based upon personal beliefs or past experiences with types of breeds.
The bottom line is that service animals and ESAs cannot be treated the same as a pet for rental properties. Whether you allow pets or not, renters have a right to live with their service animal. However, renters can't claim that an animal is an emotional support animal simply to get around the no-pet rule for their rental home.
Know the Laws In Your State
In addition to federal laws, specific laws regarding ESAs and service animals can differ from state to state. As a rental property owner, it's essential to learn and abide by the laws for reasonable accommodation in your state. If you own property in multiple states, take the time to become familiar with the differences across the states, if there are any. Spending some time on this research and working with real estate attorneys or local property management companies can help you respond well to tenants and avoid potential lawsuits!
Create a Thorough Lease Agreement When Investing In Rental Properties
Drafting a thorough lease agreement is a must for investors that operate rental properties. Knowing the difference between a pet, an emotional support animal, and a service animal and the laws surrounding each of them ensures the safety of your investments and keeps you on the right side of the law. Make sure that terms are spelled out very clearly in the distributed residential lease agreement and offer to answer any questions your tenants have regarding these types of animals. Don't forget that certain financial benefits come with allowing pets, of any kind, into your rental properties.
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