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March 15, 2016 Practice Points

A “Ruff” Guide to Emotional Support Animals in the Landlord-Tenant Context

The old saying "a dog is a man's best friend" encompasses much of the methodology surrounding these laws

by Daniel S. Rich

“A dog is a man’s best friend.” While the statement may be outdated, it oddly has significance in discussions about emotional support animals and how they are treated under landlord-tenant law.

It is not particularly controversial that animals provide unconditional love to their owners, demonstrated in many common forms: sloppy kisses, a welcoming meow, or the gaze your animal lays on you the moment you walk into the room. Recently, this dedicated and unreserved support has resulted in animals being heralded for providing medical benefits, such as traumatic stress or anxiety relief. But with these added advantages comes obstacles—specifically, ones that arise when a landlord is faced with the decision of whether to allow a tenant to possess an emotional support animal.

Discrimination under the Fair Housing Act (FHA) means “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford an equal opportunity to use and enjoy a dwelling.” Hence, as long as the accommodation does not result in an undue financial or administrative burden for the landlord or fundamentally alter the nature of the housing, the landlord must provide the accommodation. Case law has explicitly held that an exception to a “no pets” policy would qualify as a reasonable accommodation. See Auburn Woods I Homeowners Ass’n v. Fair Employment and Housing Com’n, 2004 WL 1888284 (Cal. App. 3rd Dist.).

A tenant will qualify for a reasonable accommodation under the FHA if he or she can meet the statutory definition of having a “disability,” which currently requires proving the following three elements: (1) a physical or mental impairment that substantially limits one or more major life skill (e.g., the ability to walk or vision); (2) a record of having such an impairment; or (3) being regarded as having such an impairment.

The final step requires that the tenant establish that the emotional support animal (ESA) is necessary for the owner to use and enjoy his or her dwelling. Courts have regularly held that a tenant requesting an ESA as a reasonable accommodation must demonstrate a link between the ESA and its owner’s ability to function. See, e.g., Nason v. Stone Hill Realty Ass’n, 1996 WL 1186942 (Mass. 1996) (unpublished); Crossroads Apartments v. LeBoo, 578 N.Y.S. 2d 1004 (City of Rochester, N.Y. 1991); Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Ca., 2000); Majors v. Hous. Auth. of the Ctny of Dekalb, 652 F. 2d 454 (5th Cir. 1981). Legally, a landlord is permitted to request supporting materials which illustrate the tenant’s need for an ESA; however, federal law does not mandate the tenant to provide proof of training or ESA certification of an animal.

When assessing a tenant’s request for an ESA as a reasonable accommodation, the landlord is permitted to consider the financial and programmatic repercussions of allowing an ESA onto the premises. Considerations can also include the potential disturbance the animal may pose to other tenants. Generally, this is a difficult burden for a landlord to meet. But if the ESA is shown to be particularly disruptive or the tenant fails to take proper measures to ensure that the ESA does not bother other tenants, the landlord may be justified in denying the reasonable accommodation or even evicting the tenant. See Woodside Vill. v. Hertzmark, 1993 WL 268293 (Conn. 1993) (unpublished) (where a court found that a federally assisted housing complex did not violate the Fair Housing Act by evicting a resident with a mental illness for failure to walk his dog in designated areas and use a “pooper-scooper”).

When the old saying “a dog is man’s best friend” was adopted, it was certainly not with ESAs in mind. But it appears the term encompasses much of the methodology surrounding ESA law. A dog—and other animals—have been scientifically shown to help alleviate stress and depression in certain individuals. The intersection of ESAs and accommodations by landlords is at its beginning and will continue to evolve. 

Keywords: real estate litigation, landlord-tenant, emotional support animals, fair housing, Fair Housing Act, eviction, comfort animals

Daniel S. Rich is an associate with Clark, Campbell, Lancaster & Munson, P.A., in Lakeland, Florida.

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Daniel S. Rich – March 15, 2016