About Emotional Support Animals

BY KIM LINK, ESQ.

Q: I manage a property with a strict “no pet” policy. The tenant has two cats. When I asked about the cats, the tenant replied they are emotional support animals. What should I do next?

Under the Fair Housing Act (FHA), emotional support animals (ESAs) are not considered pets. Therefore, landlords are required to make reasonable accommodations for tenants with ESAs, even if there is a “no pet” policy in place. Handling requests for ESAs involves several key steps to ensure compliance with legal requirements and to provide fair treatment to tenants.

Here are the steps a landlord or property manager can take, consistent with the Office of Housing and Urban Development’s Assistance Animals Guidance:

1. Document the Request for Reasonable Accommodations:

• A tenant may make a request for reasonable accommodations verbally or in writing, even after bringing the animal into the housing.

• Best practice: Document the verbal request to avoid miscommunication and provide supporting documentation in case of disputes.

• Respond to the request in a timely manner to avoid delays, which maybe viewed as constructive denials leading to legal claims.

2. Request and Review Documentation:

• If the tenant’s disability or need for an assistance animal is not observable, the landlord may ask for a letter from a licensed mental health professional who knows the tenant personally.

• The healthcare professional should sign and date the documentation and provide contact and professional licensing information.

• The landlord is not entitled to know the tenant’s diagnosis and may not request that information.

• The tenant must be given a reasonable opportunity to provide the documentation. Failure or refusal to provide the required documentation may be grounds for denying the accommodation.

The letter should include:

• Tenant’s name

• Confirmation of a professional relationship with the tenant

• Confirmation that the tenant has a disability, and that the ESA alleviates the symptoms of that disability

• The type of animal for which the accommodation is sought

3. Make Reasonable Accommodations:

• If the documentation is valid, the landlord must allow the tenant to keep the ESA.

• Landlords cannot charge pet-related fees for ESAs but can hold the tenant responsible for any damage caused by the animals.

• A request for reasonable accommodations maybe denied if the ESA poses a direct threat to health or safety, would cause substantial physical damage to the property, or would impose an undue financial and administrative burden.

4. Engage in a Cooperative Dialogue:

• Handle these situations with sensitivity and compliance with the FHA.

• Engage in an open and cooperative dialogue with the tenant to discuss their needs and explore potential accommodations.

• This dialogue helps ensure mutual understanding and cooperation to find a suitable solution.

5. Maintain Records and Stay Informed:

• Keep detailed records of all ESA requests and related documentation.

• Stay updated on changes in federal, state, and local laws regarding ESAs and housing accommodations.

• Regularly review and update policies to ensure ongoing compliance.

• Consult with your broker and legal professionals experienced in fair housing laws if you have any questions.

By following these steps, listing agents, landlords and property managers can effectively handle ESA requests while ensuring compliance with legal requirements and maintaining a positive relationship with their tenants. Itis essential to approach each request with an open mind and willingness to accommodate the tenant’s needs, as long as it does not impose an undue burden on the landlord. This approach not only helps in complying with the law but also fosters a respectful and supportive living environment for all tenants.

Kim Link is the Director of Legal Affairs for Maryland REALTORS®.