Many real estate agents have heard about the Arizona broker who received a $1,200 cleaning bill because an emotional support animal twice peed on the carpet at an open house. Real estate brokers are frequently called upon to deal with emotional support or other service animals not just in connection with open houses, but also when properties for sale or rent prohibit pets.
The widespread confusion that prevails on the subject of these assistance animals is understandable. The Department of Justice has defined very narrowly the types of “service animals” that must be accommodated under the Americans with Disabilities Act (“ADA”). Under the ADA, only certain dogs and miniature horses trained to perform tasks for the disabled, such as seeing eye dogs, have to be accommodated. However, the Department of Housing and Urban Development (“HUD”) has taken a much broader view of things under the Fair Housing Act (“FHA”).
It is the FHA and Massachusetts Fair Housing Laws (M.G.L. ch. 151B), rather than the ADA, that applies in the most important contexts:
(1) rentals that bar or restrict pets[CT1] ;
(2) sales of condominium units where the association prohibits or restricts pets; and
(3) open houses for a client who does not want pets on the premises.
HUD construes the FHA as requiring reasonable accommodations not just for trained service animals, but also for emotional support animals (“ESAs”) which may not have received training. ESAs are defined as an animal that “provides emotional support that alleviates one or more identified symptoms or effects of a person's disability.”
Emotional Support Animals (ESA)
An ESA is usually a cat or dog, but the law does not restrict the type of animal, so theoretically, an ESA could be any type of animal. There is no official registry or certification of ESAs. The animal does not need specialized training and is not required to be wear a “Service Animal” vest or any other type of identification. Anyone can go on the internet and buy a “service animal” coat, probably with some official-looking but phony certification, but this does not prove that the owner has a disability that the animal helps to ameliorate.
For purposes of the FHA, a disability is a condition that, if not treated, would impair one or more major life activities, such as caring for oneself, sleeping, reading, concentrating, thinking, communicating, and working. Conditions such as depression and anxiety that impair sleeping, concentrating, or working also satisfy the FHA’s definition of disabilities.
When an individual who cannot see shows up with a seeing eye dog, the need for the animal is readily apparent. In such cases, one cannot lawfully ask for documentation of the need for the animal. Often in the case of ESAs, the person’s mental or emotional disability and the disability-related need for the animal are not so apparent. In such cases, HUD guidance makes it lawful to require the owner of the animal to provide “reliable documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.” Such documentation is sufficient “if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”
The FHA rules do not spell out further what constitutes reliable documentation. Although unproven under the FHA , considering the analogous rules recently adopted by the Department of Transportation for ESAs on airplanes, and the prevalence of phony ESA certification available on the internet, one should be able to request and insist on documentation (a) that is no more than one-year old; (b) that is on the letterhead that provides the name and professional credentials of the issuing provider, as well as the provider’s address; (c) that states that the individual is under the provider’s care for a mental or emotional disability that meets the definition of a disability under the Fair Housing Act; and (d) that states the ESA ameliorates symptoms of the disability. If the individual provides the foregoing documentation, that is generally sufficient. There is no right to talk to the provider, to obtain specific details of the disability, or to see actual medical records.
Once reliable documentation has been received that an animal is indeed an ESA within the FHA and Massachusetts regulations, waiving a no pet policy or making an exemption to a pet restriction is usually required as a reasonable accommodation. There are limited exceptions to this rule:
1. The request to allow a pet would impose an undue financial and administrative burden;
2. Allowing the animal would fundamentally alter the nature of the housing provider's services;
3. The specific animal in question poses a direct threat to the health or safety of others and cannot be reduced or eliminated by another reasonable accommodation; or
4. The specific animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
These exceptions will rarely apply. HUD stated in 2006 that a hardship exception might apply if the housing provider’s insurance would be canceled because of the animal’s presence and if there were no other comparable insurance available without such a restriction. HUD also suggested that such insurance policy restrictions, when applied to an ESA, may constitute unlawful conduct on the part of the insurer.
A request for an ESA cannot be denied because of the specific breed of the animal. Any denial because the animal poses a threat to people or property must be based on the known characteristics of the individual animal. This exception will rarely be applicable when there is no history of dealing with the specific animal.
What should a Realtor® do in representing a housing provider with a no pets policy when a prospective tenant says their animal is an ESA? In such a case, the housing provider is entitled to request and receive the reliable documentation from a provider described above. If the housing provider rejects the ESA request in the face of seemingly adequate documentation furnished by the tenant, the Realtor® should advise their client to speak with an attorney, and, if necessary, cease representation. Acquiescing in the wrong decision and continuing to represent the housing provider may lead to significant liability, just as it might in connection with cases of discrimination on account of race or other protected categories.
Potential ESA issues are also lurking in connection with the purchase and sale of condominiums that prohibit or restrict pets. Buyers who have ESAs or service animals have the right under the FHA and Massachusetts laws to demand that the condominium association waive its pet restrictions. Realtors® should not be steering those with ESAs or service animals away from residences for sale or rent on the basis of pet restrictions. If a client says an animal is an ESA, a Realtor® should advise their client to make sure that they have the reliable documentation that will ultimately be needed to deal with the condominium association or other housing provider.
Finally, in the open house scenario, it is the owner may require documentation of ESA status to bring a pet on the property. Realtors® should not place themselves in a situation where they are the one deciding whether to permit an animal into the property. Realtors® are required to follow the lawful instructions of their clients, but a blanket prohibition on all animals entering the property may not be a lawful instruction in the case of ESAs and service animals. When an animal enters the open house, the Realtor® should ensure to obtain the contact information of the animal’s owner so that there can be recourse in case any damage occurs.