Certified Emotional Support Animals Are Entitled to Special Housing Rights

Housing Rights for Persons with Emotional Support Animals
It has long been recognized that animals are able to mitigate the negative symptoms associated with emotional and psychiatric disabilities. Emotional support animals have been proven extremely effective at ameliorating the symptoms of these disabilities, such as depression, anxiety, panic attacks, and post-traumatic stress disorder, by providing therapeutic nurturing and support.

The Fair Housing Amendments Act of 1988 (FHA), Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional support animals, even when a landlord's policy explicitly prohibits pets. Because emotional support and service animals are not "pets," but are considered to be more like assistance aids, such as wheelchairs, the law will generally require the landlord to make an exception to its "no pet" policy so that a tenant with a disability can fully use and enjoy his or her dwelling. In most housing complexes, as long as the tenant has a letter or prescription from an appropriate professional, such as a therapist or physician, and meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation that would allow an emotional support animal in the apartment.

What is a Reasonable Accommodation?
According to the FHA, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). As long as the requested accommodation for a disabled person and his or her emotional support animal doesn’t constitute an undue financial or administrative burden for the landlord or fundamentally alter the nature of the housing, the landlord is required to provide the accommodation. The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a "no pets" policy would qualify as a reasonable accommodation.

Is the tenant a "person with a disability"?
To qualify for a reasonable accommodation under the FHA, § 504, or the Americans with Disabilities Act (ADA), you (as the tenant) must meet the statutory definition of having a "disability." The statutes recognize three broad categories of disabilities: (1) a physical or mental impairment that substantially limits one or more major life activities (such as walking, seeing, working, learning, washing, dressing, and others.); (2) a record of having such an impairment; or (3) being regarded as having such an impairment.

You should be able to substantiate your disability, which is critical in requesting a reasonable accommodation. In the event that a landlord does not allow your emotional support animal, and you decide to pursue legal action, the court will likely require evidence of your disability.

Request an exception to the landlord's no pet rule
If you need an emotional support animal to ease the symptoms of a disability (as defined above), you should request a reasonable accommodation, in writing, from the landlord, manager or other appropriate authority. Your request should state that you have a disability and explain how the requested accommodation will be helpful. In addition, you should include a copy of your Registration document from National Service Animal Registry and a note from a licensed mental health professional that verifies the need for the support animal (if your therapist is unwilling to write a letter or you aren't currently seeing a therapist, click here to obtain a letter of prescription).

Establishing that your emotional support animal is necessary to use and enjoy the residence is very important. Courts have consistently held that a tenant requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal.

Although your landlord may ask for supporting materials that document your need for an emotional support animal, federal law does not require you to provide proof of training or certification of the animal.

The Law: If it is not an undue burden or a fundamental alteration, the landlord must grant the requested accommodation To assess your request for emotional support animal as a reasonable accommodation, the landlord may consider the administrative, financial, or programmatic repercussions of allowing an animal onto the premises, including the potential disturbance to other tenants. Typically, a landlord will have a difficult time establishing that an emotional support animal constitutes a fundamental alteration or undue burden. In its internal regulations governing federally assisted housing, HUD specifically states that allowing an assistive animal does not constitute an undue burden.

If the emotional support animal is particularly disruptive or if you fail to take proper measures to ensure that the animal does not bother other tenants, however, your landlord may be justified in denying the accommodation or ultimately filing for an eviction.

In the event that your landlord suggests an alternative accommodation, you can reject it if you feel it is inadequate.

What if the landlord allows emotional support animals, but tries to charge an excessive deposit?
The Housing & Urban-Rural Recovery Act of 1983 protects the right of tenants in federally assisted housing for the elderly or persons with disabilities to have a pet, and further provides that the landlord is entitled to charge a deposit for that pet to cover any resulting damage to the property.

However, if a pet is more properly characterized as a working "service animal," the tenant should be exempt from the deposit. According to HUD's internal regulations:
Service animals that assist persons with disabilities are considered to be auxiliary aids and are exempt from the pet policy and from the refundable pet deposit. Examples include guide dogs for persons with vision impairments, hearing dogs for people with hearing impairments, and emotional assistance animals for persons with chronic mental illness.

When you request an emotional support or other assistance animal, the landlord should not assume that the animal will cause excessive, financially burdensome damage. In the event that a tenant's emotional support animal does cause significant damage, that tenant may be held financially liable. However, it would conflict with the purpose of the statutory protections afforded people with disabilities to allow a landlord to charge a deposit at the outset, in the absence of any significant damage. Just as it would be inappropriate to charge a tenant who uses a wheelchair a deposit for potential damage to carpeting, it would be similarly unwise and unfair to demand a deposit from a tenant who uses an emotional support animal.