How to Prevent Emotional Support Animal Discrimination Lawsuits
In this seminar, experienced Rochester landlord tenant attorney Robert Friedman discusses how to prevent emotional support animal discrimination lawsuits.
Many landlords here have had requests for emotional support animals or service dogs. There’s a lot of misinformation out there on this issue. For one thing, despite what you read on the internet, there is no registry; there is no certification for service dogs or emotional support animals. That’s a complete fraud.
This issue can only be judged on a case by case basis. There’s a whole interchange of information that must take place, along with specific factors relating to the mentally ill and the elderly. These regulations and rules are covered on multiple levels. There’s the federal laws, the Fair Housing Act, which is enforced by HUD. HUD is about to come out with some new guidelines regarding emotional support animals. There are also state laws, the New York Human Rights Laws, that cover this issue, as well as county laws. Finally, city laws, such as New York City law, address this issue, too.
In the city of Buffalo, there’s fines of $1,500 per incident involving the disabled and support animals. The city can revoke or suspend your permits to allow landlords or tenants. There also can be civil suits.
There are distinctions defining service animals. There are service animals, and then there are emotional support animals. Originally, service animals started out as being just dogs. It has been expended to include birds, cats, and miniature horses. These various animals are known as guide dogs, hearing dogs, psychiatric service animals, and assistance animals. There’s a fine distinction in the language: assistance animals or support animals.
Service dogs are specifically trained to help people with disabilities by executing tasks that include pulling a wheelchair, guiding persons that are visually impaired, supporting people during seizures, and even calming people who suffer from PTSD. If it’s not obvious what services the dog is providing, the only thing you can ask would be, is this dog required because of a disability? What work or task is a dog trained to perform?
There are also therapy animals to consider. They are to help third-parties. They’re not trained for a specific individual; they are for patients in hospitals, nursing homes, retirement homes, and are sometimes used in courthouses to assist victims who have to testify.
Then there are emotional support animals, which have a rather loose definition. These animals alleviate one or more symptoms of a person’s disability. They can include a number of animals, including cats, ponies, ferrets, and even snakes. They are not trained for a specific purpose or for a specific task.
Emotional support animals are also known as comfort animals or campaign animals. This will all come up when a tenant wants a reasonable accommodation from your no-pet provision. They have to ask for an accommodation because of their disability. There are certain types of housing that are exempt: buildings with four or fewer units where the landlord lives in one of the units, if you own not more than three single homes and you don’t use a real estate broker agent, or if you don’t use discriminatory advertisements. There’s also exceptions for organizations and private clubs that limit occupancy to members.
What is required as far as medical verification? There are really only two questions that are applicable for emotional support animals. One: Does the person seeking to use and live with the animal have a disability, and is there a physical or mental impairment that seriously limits one or more major life activities? Two: Does the person making the request have a disability with a need related to an assistance animal? There has to be a disability and they have to prove that they have a need in order to be able to live in the housing. An exception can be made.
The tenant has to make a request to the landlord by submitting reliable documentation. This is on a case by case basis. HUD is considering guidance to limit who can actually provide this verification since it is currently pretty broad. It’s not just medical providers; it can involve health or social service professionals, psychiatrists, social workers, or other mental health professionals. If you do get this request, you don’t have to give an immediate answer. You can just let them know it might take you one or two weeks to get back to them regarding the matter.
You can’t ask for medical records or confidential healthcare information. A tenant who purchases a verification letter off of the internet is not sufficient because, like I said, there’s no such thing as official registries. There’s one website that sells about 11,000 of these a year. There is no registry; there is no actual certification.
Basically, the letter has to say that the tenant’s been under the provider’s care and he meets the definition of disability. Due to that disability, he needs a certain pet in order to alleviate those difficulties and be able to live independently. You can ask for a letter from someone that has had personal dealings with the tenant that can attest to his having a disability and requiring an emotional assistance animal in order to enjoy that housing.
There’s a wide range of awards to tenants who have been discriminated on the basis of disability. In Utah, there was $45,000 that had to be paid by landlords saying that the healthcare provider might be held responsible for any damages or physical injury that the assistance animal caused. A woman who suffered bipolar disorder won $314,000 against a Michigan housing complex. They refused to allow her to have an emotional assistance service dog in her apartment.
Notwithstanding all of this, an emotional support animal is not considered a pet. Pet provisions may not apply, but the pet still has to behave. We’ve drawn up special riders for that. The pets can still not annoy other tenants or cause damage to your property. You would have grounds to evict the tenant if they do so. The pet cannot be neglected by the owner, either, or left to bark.
In your lease riders, you should identify the pet as much as possible. You can still require that the tenants provide proof of inoculations for the animal. I also highly recommend having renter’s insurance to cover liability from dog bites or attacks. You cannot, however, charge additional security deposits or additional rent for these animals, even though you may charge it for other tenants.
You’re familiar with breed-specific laws, too. Some municipalities ban certain breeds. You would still be required to allow this pet even the municipality bans certain types of breeds. If there is a hardship though, you don’t have to accept. For instance, if your insurance company were to charge you for certain types of breeds, you would not have to accept those breeds. There are also outs if there are additional costs to you or if it’s a burden to you, the landlord. There are also questions regarding issues of size; for instance, a landlord might say a renter doesn’t need an 80-pound dog when a 20-pound dog can do the same thing. You cannot necessarily require a different type of accommodation of, for instance, a smaller dog.
The following is a letter we received on what I call the guinea pig case. This was a letter from a Williamsville psychiatrist. They should have never filed charges of HUD, but my client was charged with discrimination:
“Rebecca Renter is a patient of mine and currently under my care. This letter is to confirm that she requires her guiney pig [sic] to travel with her as a service pet for emotional support needs and reduction of stress.”
It doesn’t say anything in there about housing. For instance, it has to say something about housing that you need this emotional support animal in order to enjoy your housing. This talks about travel and refers to a service pet. Obviously, they had no idea what they were talking about.
These charges were eventually dismissed by HUD. More importantly, it was an owner-occupied property too, which means the landlord was exempt. That’s why this causes so much fear. People are deadly afraid of being charged with discrimination because of things like this. There’s quite a number of reasons why they should never have filed charges against this guy. He had brokers representing him, too.
New York state, like 23 other states two years ago in December of 2017, passed laws that make it unlawful for any person to knowingly misidentify a dog as a guide service therapy or hearing dog. Violation of the law results in fines. It’s only $100 and 15 days in jail.
Contact our experienced Rochester Landlord Tenant Attorneys for any questions or further guidance. Let our experience work for you.