What Is an ESA?
Emotional support animals, also called comfort animals or therapy pets, are designed to assist a person who suffers from a disability by alleviating the disability’s effects. This is accomplished by giving the person emotional support and comfort. For example, someone with PTSD may have episodes of panic or distress that an ESA may alleviate, or a person with autism may benefit from the social friendship of a comfort animal. An ESA allows people the companionship they otherwise might not be able to enjoy , as a result of their disability. The key distinction between ESAs and service animals is the latter’s higher level of training and state and federal certifications. The ADA specifically outlines dog and miniature horse species for service animals. ESAs do not require certification, training, or specific species, and instead can be nearly any type of animal. Because of this, the rights held by service animals and ESAs are also different, particularly when it comes to housing.
ESAs Are Protected Under the Fair Housing Act
Courts have consistently held that ESAs are entitled to protection under the Fair Housing Act (FHA). The FHA does not explicitly mention ESAs, but newer amendments to the FHA adopted by many states define ESAs. For example, in New Hampshire, an "emotional support animal" under RSA 354-A:32 is any animal that when disabled persons use it, may alleviate one or more of the identified symptoms or effects of the person’s disability. This definition follows the definition of an ADA Service Animal but adds the "emotional support" requirement. ESA statutes in other states are similarly written.
In Schmidt v. Flying J Petroleum, Inc., the District Court of Minnesota ruled that a plaintiff who had an ESA that assisted with a disorder similar to PTSD was not required to show that he had a mental illness, but rather that he had a disability as defined by the FHA in order to be entitled to an ESA as an accommodation at his place of employment. 742 F. Supp.2d 877 (D. Minn. 2010). In Tinley Park, Illinois, a federal judge ordered a mother with PTSD to be permitted to have her ESA, a small dog, at her subsidized housing and awarded her $50,000 in damages. The judge noted in her Order that "the facts of this case place it on the ‘bleeding edge’ of the current law . . … Other than an unreported decision with a fact pattern very similar (Green v. Housing serviced in 2008), there is scant to no guidance in the reported decisions regarding Plaintiffs in the position of Claimant in this case." Terrell v. Riviera Property Management, d/b/a Residences at Riverbend Apartments, No. 14 C 4961 (N.D. Ill. 2016). There are many other cases indicating that ESA owners have rights under the FHA.
Acceptable Reasons to Deny an ESA
To qualify for the protection of the Fair Housing Act, the requested accommodation must be "reasonable." This means that a landlord may deny a request for an ESA where the requested accommodation would impose an "administrative or financial burden on the housing provider" or would be a "fundamental alteration in the nature of the program[.]" Thus, most laudable requests for ESAs can be denied if the requested accommodation results in an undue financial or administrative burden.
Relatively new to housing providers is the concept of "undue financial burden." Initially recognized regarding fair housing issues in 2005, "undue financial burden" refers to the expenses and other economic factors that a landlord may incur from a requested accommodation or modification. In the ESA context, landlords frequently have concerns about the costs involved with a request for a therapy animal, as therapies animals are typically not trained by the landlord until after the accommodation is requested. The attorney fees and administrative costs involved in working through the interactive process should certainly be considered in determining whether a significant, important, or necessary accommodation is "reasonable" under the Fair Housing Act.
"Administrative burden" under the Fair Housing Act, however, is not one of those interests that has been specifically defined by the Department of Housing and Urban Development (the "HUD"). Case law informs us, however, that "administrative burden" generally includes tangible costs, policies, and/or record keeping changes, as well as other economic impact on the provider. It has also been determined by the courts that there is an associated time-for-money aspect to the term as well, and as such, requested accommodations that require significant time or personnel resources by the housing provider may be used to meet this prong. For example, if processing an accommodation takes hours of personnel time because of the documentation required by certain jurisdictions, then this significant time requirement, coupled with any associated costs, could be used to support a determination that the accommodation is an "undue administrative burden."
The "undue administrative burden" defense to a request for an ESA is often linked to the "direct threat" standard. The "direct threat" standard specifies that a requested accommodation can be denied if it poses a "direct threat to the health or safety of others," even if the accommodation is otherwise reasonable. For example, a tenant’s service animal that barks repeatedly throughout the night is likely a "direct threat" to the other tenants in the apartment building, despite the fact that the service animal is trained not to bark under normal circumstances.
How to Document and Request an ESA Accommodation
A valid ESA accommodation request is one that provides proper notice, clearly names the requested aid, and contains enough information for an interactive process to be conducted. Notice does not mean a formal writing; instead, notice is something that can be given orally or in writing. It should include the nature of the disability related need and how the requested accommodation will assist the person with a disability. The request should name the animal and request that the animal be allowed in the housing unit where it will be living. A mutually agreeable time and place to meet shall be agreed to by both parties.
Notice of a requested accommodation is insufficient if a housing provider must guess the nature of the disability related need, the exact accommodation requested or whether it is a medically necessary accommodation.
Notice should be given promptly. While neither the law nor HUD have provided us a deadline, other HUD documents indicate that for a timely request a notice should be made "within a reasonable time after arrival at the dwelling or negotiated renewal of the lease." Thus, unless a housing provider has a policy on a specific limit (for example, 10 days), receipt of a doctors note for an assistance animal should generally be submitted within 30 days of the request to establish timeliness. However, a notice could be inadequate if there are limits on when requests will be accommodated, such as a waiting list for a service animal or no-pet building.
Common pitfalls include allowing a doctor to submit a form letter backdated to a prior date . This should not be permitted under any circumstances, as it allows an ESA owner to go without a proper ESA letter for a certain period of time. No ESA request should ever be granted until a doctor’s letter is provided in a timely and adequate manner.
Missing components of a doctor’s letter includes missing the disability and the disability-related need for the ESA, failure to name a specific ESA, failure to note that it is not a tenant’s ESA, leaving out the species or type of the ESA, or failing to state the specific relationship between the ESA’s disability and the resident’s disability.
The fair housing interactive process requires A to see if there is an immediate and direct threat to the housing provider. If there clearly is, there is no need to process an ESA request. But if there is not a direct threat to housing provider, They should then review their policies regarding non-challenging ESA requests. Some common examples include: is size an issue, will it be installed, is it withdrawing support for an existing community tenant activity, is it not on the UNP ban list, or does it advance an educational purpose. Procedures should be adopted to be publically available including in or with the lease.
Other procedures should include notifying the landlord, the animal, the unit it will occupy, any pet fees, damage deposits, or other costs associated with the ESA. After the initial notice, both parties should agree upon a mutually agreed upon time and place to meet to discuss issues with the ESA request.
What to Do If An ESA is Denied – Tenant Rights
If a tenant’s request for an ESA has been unjustly denied, they have several avenues of recourse.
- Revisit the Request: It is a good idea to approach the landlord one final time to attempt to clear up any confusion or misunderstandings. Emphasizing the need for the animal to assist them emotionally and how it helps them cope with their disability may help.
- File a Complaint with the HUD: If a tenant suspects that their landlord refuses to accept their ESA due to an unreasonable handicap to the rights of others, or that discrimination on the basis of disability is the underlying reason for denying the request, they have the right to file a complaint with HUD. This will trigger an investigation into the matter. That being said, the HUD uses a low standard of evidence when evaluating alleged discrimination. The bottom line: even if the disputed ESA in question would not be allowed under the DTEI exemption, HUD may still find that the housing provider discriminated against the tenant for denying their request for an ESA.
- Consult an Attorney: Tenants can seek to retain counsel in order to begin a lawsuit against the landlord. This can either be preemptively requested by a warning that a lawsuit is in the works, or may be necessary after notice that a lawsuit has already been filed.
What Landlords Should Know: Responsibilities and Best Practices
A landlord must ensure that a dwelling unit is compliant with all housing laws and zoning regulations. Landlords must also keep up with the requirements of various statutes such as the Residential Tenancies Act and Ontario Human Rights Code ("Code"). These laws are intended to promote the occupant’s right to peaceably enjoy his or her unit. But at the same time, landlords have the right to evict tenants where their conduct interferes with the use and enjoyment of other tenants’ lawful rights.
A tenant’s pet that is not a service animal may be acceptable in a rental unit provided that the tenant obtains the landlord’s approval of the pet in advance. While, landlords are entitled to deny requests for pets for any reasonable grounds under the tenancy agreement or related law, they are not allowed to arbitrarily reject most requests for pet ownership on discriminatory grounds.
The landlord must accommodate service animals so that their use does not cause undue hardship to other tenants. A landlord’s duty to accommodate has limits. If the animal handler has committed misconduct , such as abuse of the animal, or poses a direct threat to health or safety, the landlord can terminate the lease due to liability related to these risks. For example, where landlord circumstances are known and accommodated but the tenant’s dog bites a neighbour, leaving the landlord liable for damages or costs, most Courts would probably allow for termination in this context, especially if the tenant has been advised of the risk posed by the dog.
Landlords stuck between these competing interests sometimes find it difficult to balance the conflicting interests. The best approach is for landlords to either add a provision in the rental agreement confirming the right to deny a pet on any reasonable grounds, or to amend the agreement to address persons with disabilities who use service animals. It is important to understand the nature of the accommodation being requested before making a decision whether to accept an assistance animal or not.