ESA or emotional support animals continues to be one of the most talked-about fair housing concerns. The more we clarify and educate the many different scenarios that face property management staff, the better equipped we all can be to avoid a fair housing complaint.
Estimated reading time: 6 minutes
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First off, let us thank you all for the fantastic response we received from Episode 15 – What Does The Fair Housing Act Say About Emotional Support Animals? We received a multitude of questions and comments and wanted to take some time to respond and convey in practical terms what the law requires of housing providers. First, let’s discuss some real-life scenarios that property management staff have encountered and then review some of the more difficult questions we received.
Guest Service Animals on Site
One of the questions we received is: Which law prevails regarding guests bringing service animals on-site? A property management staff member related an experience where she had informed a guest that animals were not allowed on site. The guest became upset and accused the staff member of breaking the law as the guest claimed that it was a service animal. So which law prevails?
The law that the guest was referencing and what most people are familiar with is the one that applies to public places like restaurants or stores that limits what employees can ask about the animal. However, that is not the situation when an animal has been brought onto your property. The Fair Housing Act allows housing providers to ask for verification of disability as well as the need for a service animal. A property would follow the usual reasonable accommodation process and apply it to the guest’s assistance animal. The process would include answering the following questions:
- Is this person actually disabled based on the definition of the Fair Housing Act?
- Does this person need the animal as a result of this disability?
Disclosing Confidential Information
Another question we received was around the topic of disclosing confidential information. In this case, the staff member had a resident who moved onto the property because it was no pet property due to an extreme fear of cats. Should the staff member inform the resident that their neighbor has an emotional support cat?
The short answer is “NO”! You should not be sharing any confidential information about one resident with another. That being said, you should be ensuring that the resident has a general understanding that even though it is a no pet property, there either is or could be an ESA on the property at any time.
Number of Emotional Support Animals Allowed
The next question came from a resident and highlighted what can happen when a management change occurs. This person states that they have had three cats for the past fifteen years. The previous two managers allowed this, but the new manager hates cats and has demanded that one be removed. The person goes on to state that they are disabled and that their physician is willing to write an ESA letter.
Our goal with this question is to ensure that this resident’s housing provider follows the law correctly. This request needs to be processed according to the situation, taking into account that the cats have been there for 15 years, as well as the documentation that is being provided regarding the need for emotional support animals.
More Complex ESA Questions
Can a reasonable accommodation request be put into motion and verified prior to the applicant moving in?
Absolutely yes! Just be sure that at every single stage of the request process, the applicant understands that the answer to the request has nothing to do with whether or not they qualify for the unit. The two applications are entirely separate.
Does the requirement for the healthcare provider to have a personal knowledge of the resident and their disability apply only to a verification of need for an ESA or does it apply to all types of reasonable accommodations or modifications?
Yes, the requirement that a verifier has personal knowledge of the circumstances and diagnosis of that resident applies across all reasonable accommodation requests. There is a necessity to determine both the verifier and the sources they used to determine the resident’s eligibility, which is why it is okay for you to ask for this information on your verification documentation.
Can a landlord deny an ESA animal for not being hypoallergenic?
Generally no unless there are some unique circumstances to take into consideration. For example, a roommate or communal living situation. Then it might be a factor. But normally, this would not be considered when processing a reasonable accommodation request.
Two equally qualified applicants have applied for a unit. One has an emotional support animal. Can you choose the applicant without the animal without being considered discriminatory?
Absolutely not! This would definitely look like illegal discrimination.
What exactly does a resident have to have in order for that animal to be considered an ESA?
First and foremost, the resident needs to have a disability that substantially limits one or more major life activities. Next, they would need to have a medical or therapeutic provider who can provide that information if requested. There also needs to be a connection between the disability and the animal. What or how does this animal provide support in reference to the residents’ disability? These two factors will help differentiate between an ESA and a pet.
What happens if a resident waits to disclose their need for an ESA until after they’re approved?
Honesty is always the best policy. By disclosing after the fact, a resident could give off the appearance of not being truthful. A housing provider would still need to proceed with the verification process regardless of when it comes in, but it is always better to be upfront.
Emotional support animals will continue to bring new challenges to housing providers. The best and most effective way to avoid a possible fair housing complaints is with proper training. We tackle this along with other advanced fair housing topics in a soon-to-be-released course. Be sure to sign up for our newsletter so we can keep you posted about this as well as more complimentary fair housing insights.
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