Emotional Support Animals (ESAs), Service Dogs, and pets might bring some behavioral, sanitary, and damage risks, but Multifamily operators are getting clear on laws and opening up their policies.
In January the world was treated to a viral video of a United Airlines passenger being turned away at the gate because the crew refused to allow her to board with an “emotional support peacock” in tow. It was an absurd story, but one that is reflected by the airline’s 75% year-over-year surge in customers traveling with emotional support animals. And it drew attention to trends redefining the debate over how we accommodate animals in public and even residential spaces.
Multifamily property managers are all too familiar with the behavior, sanitary and damage risks presented by pets. But a patchwork of federal, state and local codes has created a legal uncertainty that could affect multifamily industry operators as they try to strike a balance between accommodating physically and/or mentally disabled residents and maintaining standards for quality and cleanliness.
Partnering with dogs to guide blind or disabled persons has been a widespread practice since at least the 1940s, when unprecedented numbers of injured veterans returned home from fighting in the second world war. Though guide dogs were a fairly common sight, it wasn’t until the Americans With Disabilities Act (ADA) of 1990 that their legal place in society was explicitly codified and systematized. This included policies such as allowing service animals in areas that forbid other animals.
ADA defines a service animal 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.” On the other hand, the bill notes that, “Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” Landlords cannot charge a pet deposit or pet fee for service animals, however the renter is liable for any damage that the service animal may cause. Property Managers can also request copies of the animal’s health records to prove the animal is immunized and parasite-free.
In 2010 the law was updated to accommodate psychological disorders, such as PTSD and Alzheimer’s, reflecting the broader cultural shift towards greater awareness and decreased stigmatization surrounding mental illness. But even the revised law still makes it clear that emotional support animals need not apply to be service animals, saying those pets “whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA”. In other words, if a prospective resident wants to bring in what they’re calling their “service” rabbit or monitor lizard, you would be free to tell them “no.”
But nothing in property operations is ever that simple. Companion Animals, which may also be referred to as Assistance Animals or Emotional Support Animals (ESAs) do not require training, nor do they need to perform physical tasks. Rather, their purpose is to provide companionship and comfort to the owner — and in contrast to Service Animals, ESAs can be dogs, cats, snakes, birds, lizards, or other creatures.
Clarifying the gray area around emotional support animals (ESAs)
The Fair Housing Act is far broader in scope than ADA when it comes to ESAs. Even apartment complexes with no-dog or no-pet policies must by law make reasonable accommodation to pets that function as emotional support animals. ESAs, like service animals are not subject to pet deposits or fees, because the law doesn’t consider them to be pets. Still, ESAs must follow the same reasonable rules that apply to pets as far as waste, leash restrictions, damage, noise and safety. As Stephen Michael White, founder of RentPrep.com notes, “Landlords can still write warnings, deliver official notices or even evict the tenant and companion animal for things like excessive noise, property damage, behavior problems or whenever the companion animal might threaten the safety of other tenants.”
“The Fair Housing Act is far broader in scope than ADA when it comes to ESAs. Even apartment complexes with no-dog or no-pet policies must by law make reasonable accommodation to pets that function as emotional support animals.”
The gray area is that what actually constitutes an emotional support animal is often in the eyes of the pet owner – and that subjectivity and ambiguity can be frustrating to landlords. While technically, there must be a nexus (significantly identifiable relationship) between the renter’s disability and the need for an ESA to qualify as a legitimate companion animal, there are no clear guidelines on what kind of animals can serve as ESAs. Nor are there restrictions on breed, size or even number. There also are no requirements for socializing these animals or training them to behavioral standards.
Perhaps most concerning, there is a great amount of leeway in who is able to prescribe a companion or assistance animal. Paid online ESA services have popped up, marketing solutions that promise to help renters get around no-pets policies or pet deposits with dubious ESA letters. Applicants and residents may even attempt to exploit assistance animals by presenting forged doctor’s notes. There is no need to harass or give the impression that you doubt the renter’s request, but it is also within your rights to confirm that a legitimate health professional has prescribed the ESA for the resident as part of your due diligence.
In denying assistance animals you could run legal risks if you don’t have your bases covered. But there are officially sanctioned reasons allowing you to turn away ESAs. For example, if “the assistance animal would create an undue burden, such as keeping a miniature horse in a high rise apartment where there is no facility for such an animal,” or “the animal is a direct threat to the health and safety of other residents,” or even if “the presence of the animal fundamentally alters the nature of the housing provider’s operations” (source).
Take another look at your property pet policies
Even reasonable pet lovers agree that living with an animal indoors tends to cause more damage and cost owners more money to repair units. Nevertheless, for the Multifamily industry, attempting to fight the trend toward pet-friendly housing is a losing strategy. Instead of resisting the increasingly sweeping definition of support animals, apartment owners should understand the law and embrace its spirit. Pets are an important part of many people’s lives, whether they’re what is traditionally thought of as “assistance animals” or not — and the vagueness surrounding the definition and legality of emotional support animals is indicative of our mixed attitudes toward pets as a society.
But one need simply go outside and observe any public area. Increasingly, people are bringing their dogs or other pets – service or not – to the mall, cafes, stores and more without disapproving looks from strangers. Off-leash dog parks are continuing to pop up across the country, attracting people from miles around for the opportunity to play fetch with their furry companions in public guilt-free. Many workplaces today pride themselves on their pet-friendliness, and magazines like Fortune consider opening the office to pets a “wise” decision to attract and retain talent.
With all of this in mind, apartment owners seeking an edge in competitive markets should consider a more open and welcoming pet policy. Of course, you can draw the line at miniature horses, as well as pets considered rare, exotic or illegal. In fact, you can make a positive impact on both our environment and world economy by staying aware of the specific types of pets your residents are harboring. Laws protecting threatened species exist for a reason and stopping the export and trade of illegal pets can prevent poaching and habitat destruction both in your region and worldwide.
Your property inspection system not only helps you document and track your renters’ pets and pet violations, but also mitigates damage costs. You should make sure your inspections are thorough, precise and easily accessible so you can prove what damage was caused by an animal. A cloud-based mobile application can be a powerful tool to help with this because it’s easy to track each and every scratch and stain and ensure that the costs to fix damaged items are properly recovered.
“Your property inspection system not only helps you document and track pets and violations, but also mitigates damage costs.”
There’s another important reason to consider letting pets in, and that’s the fact that even if you’ve officially disallowed pets, there are always some residents who will bring them home anyway. Recognize that if you formally allow pets, you may not only ask for an additional security deposit, but also keep an accurate registry of which tenants have pets. This benefits you because you can predict which apartments are going to require more time and money to repair, instead of being hit with a surprise. For the renter, the benefit of not having to hide their canine, feline, or aquatic friends is a strong incentive to properly register the presence of their pet.
Then there is the safety issue, which is no small consideration in an industry where lawsuits for personal injury are common. By allowing and regulating animals, property managers can require owners of pets to sign indemnity waivers and also get supplemental insurance to cover any injuries or damage caused by their animals. On a more positive note, you can also offer microchipping programs, allowing lost pets to be quickly recovered if they run away.
Ultimately, pet-skeptical landlords and multihousing owners should remember that it’s 2018, and people walk their cats with no sense of irony. So let the dogs in — with proper planning — and watch your resident satisfaction increase with little-to-no investment.
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