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Emotional support animal

An emotional support animal (ESA) is a companion animal that a medical professional has determined provides benefit for an individual with a disability. This may include improving at least one symptom of the disability. Emotional support animals, typically dogs, but sometimes cats or other animals, may be used by people with a range of physical, psychiatric, or intellectual disabilities. In order to be prescribed an emotional support animal the person seeking such an animal must have a verifiable disability. To be afforded protection under United States federal law, a person must meet the federal definition of disability and must have a note from a physician or other medical professional stating that the person has that disability and that the emotional support animal provides a benefit for the individual with the disability. An animal does not need specific training to become an emotional support animal.[1]

In the U.S., federal protection against housing discrimination is afforded to mentally disabled persons under two federal statutes: Section 504 of the Rehabilitation Act of 1973 and the Federal Fair Housing Amendments Act (FHAA) of 1988.[2] These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against disabled persons in housing, and if a reasonable accommodation will enable a disabled person to equally enjoy and use the rental unit, the landlord must provide the accommodation. Persons with disabilities may request a reasonable accommodation, such as a waiver of a "no pets policy", for any assistance animal, including an emotional support animal, under both the FHAA and Section 504.[3]

Contents

Section 504 of the Rehabilitation ActEdit

Section 504 of the Rehabilitation Act was enacted in 1973 and made broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal.[2] However, it was not until 1988 when the U.S. Department of Housing and Urban Development (HUD) created regulations under the statute.[2] Section 504 states:

No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.[2]

In the context of housing discrimination, this statute creates the rule that public housing authorities cannot deny housing to a disabled person solely because of his or her disability, and that if a reasonable accommodation can be made to make housing available to a disabled person, the landlord is required to make the accommodation.[4] Even though the statute does not expressly use the phrase "reasonable accommodation", it has been read into the statute by case law and HUD regulations interpreting the statute.[2]

To establish that a "no pets" waiver for an emotional support animal is a reasonable accommodation under Section 504, the tenant must: have a disability, be "otherwise qualified" to receive the benefit, be denied the benefit solely because of the disability, and the housing authority must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas.[2]

The Majors and Whittier Terrace courts established the foundational principles that a tenant can be "otherwise qualified" under Section 504 despite an inability to comply with a "no pets" policy, and that a waiver of a "no pets" policy can be a reasonable accommodation under Section 504.[2][4][5] However, several 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.[note 1][6] This required nexus between the disability and the emotional support animal has been refined by several courts. For instance, in Janush v. Charities Housing Development Corp (N.D. Ca., 2000), the U.S. Northern District Court of California held the reasonable accommodation is a fact-based, and not species-based, issue.[2] In Nason v. Stone Hill Realty Association (1996), a Massachusetts trial court recognized that there were more reasonable accommodations to lessen the effects of a person's disability, other than keeping an emotional support animal, and therefore denied the tenant's motion for preliminary injunction.[2] Courts have held the emotional distress expected to occur if a person is forced to give up his or her emotional support animal will not support a reasonable accommodation claim.[2]

Since a violation of Section 504 requires the housing authority to receive federal funding, this act did not cover private housing providers. This legislative gap existed until 1988 when Congress passed the Fair Housing Act Amendments.

Fair Housing Act AmendmentsEdit

Whereas only housing authorities receiving federal financial assistance are subject to Section 504, both public and private housing authorities are subject to the provisions of the Fair Housing Act.[2] Enacted as part of the Civil Rights Act of 1968 legislation, the Fair Housing Act (FHA) focused on housing discrimination on the basis of race, color, national origin, or gender; in 1988, however, the Federal Fair Housing Act Amendments (FHAA) expanded this scope to include handicapped persons.[2] The FHAA states that it is unlawful "to discriminate in the sale or rental...of a dwelling to any buyer or renter because of a handicap of that buyer or renter, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or any person associated with that buyer or renter." Further, it is discrimination for any person to: "refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas." Thus, like Section 504, the FHAA requires landlords to make reasonable accommodations for tenants. Additionally, the FHAA, in section 3602 (h), defines handicap, with respect to a person, as: (1) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment.[7] The term "major life activities" has been interpreted broadly to include those "activities that are of central importance to daily life," such as "seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, and reproducing."[8] The United States Department of Housing and Urban Development (HUD) is responsible for administering the FHAA; the Attorney General or private persons have authority to enforce it.[9]

To establish a prima facie case of housing discrimination under the FHAA: the tenant must have a qualifying disability, the landlord knew of the handicap or should reasonably be expected to know of it, accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the dwelling, and the landlord must deny the request, such as refusing to waive the "no pets" policy.[2]

The second element, that the landlord knew of the handicap or should have known of it, places an affirmative burden on the tenant to request the reasonable accommodation, such as a waiver of a "no pets" policy for an emotional support animal.[2] A tenant wishing to obtain a waiver of a "no pets" policy for an emotional support animal may meet this burden by providing a letter from his or her physician or mental health professional: stating that the tenant has a mental disability, explaining that the animal is needed to lessen the effects of the disability, and requesting that the animal be allowed in the rental unit as a reasonable accommodation for the mental disability.[2] Landlords are entitled to ask for supporting materials which document the need for an emotional support animal.[6] Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link, or a nexus, between the animal and the disability.[2] The nexus between the animal and the disability is analyzed under the third element of an FHAA housing discrimination case, known as the necessity requirement, and requires that the accommodation will affirmatively enhance a disabled tenant's quality of life by ameliorating the effects of the disability.[9] So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation.[6]

Although The Fair Housing Act covers both multi- and single-family detached home, the sale or rental of a single family dwelling by an owner is exempt from the statute.[9] There are two exceptions to this exemption, however. One is that the exception will not apply if the private individual owner owns more than three single-family homes.[9] The other exception to this exemption is the use of a real estate agent or a broker to rent out the home.[9]

A tenant may be awarded actual and punitive damages, injunctions, and attorney fees at the discretion of the court for a landlord's violation of the FHAA.[9]

Americans with Disabilities ActEdit

The Americans with Disabilities Act of 1990 (ADA) allows people with disabilities to bring their service animals in public places.[10] However, the ADA only extends these protections to dogs that have been "individually trained" to "perform tasks for the benefit of an individual with a disability," which is the definition of service animals under 28 C.F.R. § 36.104.[10] Since emotional support animals are typically not trained for an individual's specific disability and since emotional support animals might not be dogs, they do not receive the protections of the ADA.[10] A public place can therefore deny an emotional support animal admission.

In situations where the ADA and the FHAA/Section 504 apply simultaneously (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), housing providers must meet their obligations under both the reasonable accommodation standard of the FHAct/Section 504 and the service animal provisions of the ADA.[3][11]

Qualifying for an ESA in AmericaEdit

Americans that suffer from emotional or mental disability can qualify for an Emotional Support Animal (ESA). To get the qualification, the individual involved must have an emotional or mental disability that is certified by a mental health professional such as a psychiatrist, or any other mental health expert. In some locations, landlords and property managers do accept confirmation filled out by a certified family doctor. However, the best approach is to locate an appropriate mental health expert who can write such a letter.

LandlordsEdit

Many landlords have "no pets" policies for their rental properties, and many landlords that allow pets impose restrictions on the type and size of pets that tenants are allowed to bring into the rental property. Many landlords are reluctant to waive their pet policies and restrictions, even when requested by a tenant who is requesting accommodation of a mental or emotional disability.

Landlords may be concerned that waiving a "no pet" policy for one tenant will inspire many others to claim mental illnesses and the need for emotional support animals.[2][12] Landlords may believe that as more tenants have animals on the property, odors and noises from the animals may deter other tenants from renting and thus lower the value of the rental property.[2] Landlords may also believe that making exceptions to a "no pets" policy for a tenant's emotional support animal may confuse other tenants who do not understand why one person was allowed an animal while they were not.[8] However, if a tenant documents the need for an emotional support animal under the Fair Housing act or state law, and the landlord is not exempt from those laws, the landlord must allow the tenant to possess an emotional support animal.[13]

Pet depositsEdit

The U.S. Department of Housing and Urban Development and Department of Justice have held that "providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation."[14] In 1990, a HUD administrative judge enjoined owners of an apartment complex from charging a disabled person a pet deposit fee.[9] The judge held that an auxiliary aid, like a service, guide, or signal dog, may be necessary to afford the individual an equal opportunity to use and enjoy the dwelling unit, including public and common areas.[9] Accordingly, when a tenant qualifies for a service animal or emotional support animal, a landlord may not charge the tenant additional fees in association with the presence of the animal in the rental property. This prohibition extends to pet deposits and fees, even when those fees are charged to other tenants who have pets.[13]

A landlord may charge a tenant for damage cause to a rental property by the tenant's emotional support animal, and may deduct the cost of repairs from the tenant's security deposit, but may not increase the security deposit based upon the tenant's possession of an emotional support animal.[1]

ExceptionsEdit

Exceptions may apply to a landlord's obligation to allow a tenant to possess an emotional support animal. For example, owner-occupied buildings with four or fewer rental units are exempt from the federal Fair Housing Act. The Fair Housing Act also exempts private owners of single-family housing sold or rented without the use of a broker, as long as the owner does not own more than three single family homes, as well as housing operated by organizations and private clubs that restrict occupancy to members.[1] Exemptions under state law may be more restrictive than federal exemptions.[13]

Even when the Fair Housing Act applies, circumstances may arise under which a landlord may restrict a tenant from possessing an emotional support animal.

  • If a tenant's emotional support animal compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the landlord may not have to allow the tenant in the housing or waive a "no pets" policy.[2]
  • If the tenant becomes unable to properly care for his or her emotional support animal, the landlord may be able to restrict the tenant's continuing possession of the animal.
  • If a tenant is neglecting his or her emotional support animal and the neglect rises to a level where the animal is endangered, then there may be a basis for action by the police or animal control.[1] If any animal is being neglected, local law enforcement or animal control can intervene.
  • If other, more reasonable alternatives exists to lessen the effects of the disability and the tenant has not provided proper documentation of an emotional support animal, a court may not compel a landlord to waive a no pets policy as an accommodation of the tenant's disability.[2]
  • Even if entitled to possess an emotional support animal, a tenant remains subject to all the other provisions of the lease, including any requirement to maintain his or her residence in a sanitary manner.[1] A landlord may also evict a person with a disability if that person does not comply with legitimate tenancy rules that apply to all tenants.[2]

If the requested accommodation (i.e., the waiver of a "no pets" policy for an emotional support animal) constitutes an undue financial or administrative burden for the landlord, or fundamentally alters the nature of the housing, the landlord may not have to provide the reasonable accommodation.[6] However, as the burden of allowing emotional support animals is generally modest, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy on the basis of a claimed extreme burden.[2]

College residence halls and dormitoriesEdit

On April 25, 2013, the U.S. Department of Housing and Urban Development sent notice to its regional offices that public universities are required to comply with the Fair Housing Act, which includes allowing emotional support animals into college dormitories and residence halls.[15] As of 2015, colleges in the United States such as St. Mary's College of Maryland were trying to accommodate students with a documented need for emotional support animals.[16]

AirlinesEdit

The Air Carrier Access Act establishes a procedure for modifying pet policies on aircraft to permit a person with a disability to travel with a prescribed emotional support animal, so long as they have appropriate documentation and the animal is not a danger to others and does not interfere with others (through unwanted attention, barking, inappropriate toileting, etc.).[17][18]

In regards to airline policies affecting persons flying with animals, most airlines charge fees and require the animal to be in a cage that can fit under the seat; if a caged animal cannot be placed under the seat, the animal flies with the luggage.[19] With emotional assistance animals, on the other hand, they are not required to be caged, nor are people charged for flying with an emotional support animal.[19]

With the exceptions provided to emotional support animals, many people who do not have a mental disability have tried to bring their animals on a plane and pass them off as emotional support animals.[19] Airlines, like Southwest and JetBlue, however, typically have policies that passengers flying with emotional support animals must follow.[20][21] While an airline is allowed to require a passenger traveling with an emotional support animal provide written documentation that the animal is an emotional support animal, the same is not true for a service animal.[10]

Multiple emotional support animalsEdit

While there do not seem to be any cases dealing with the issue of multiple emotional support animals, the basic requirements for this reasonable accommodation would still be the same.[1] In other words, if a person were claiming the need for multiple emotional support animals, then he or she would need documentation supporting this need from his or her physician or medical professional.[1] The practitioner would need to provide documentation that each support animal alleviated some symptom of the disability.[1]

ControversyEdit

An emotional support animal may cause problems that a trained assistance dog may not. For instance, due to the lack of training, an emotional support animal may bark at and smell other people, whereas service dogs are trained not to do so.[19] There have also been concerns about people abusing the system by acquiring an emotional support animal even though they do not need it.

The lack of training for emotional support animals has also led to controversy in the courts. Specifically, there is controversy over whether the ADA definition of service animal, with its requirement of training, applies to reasonable accommodation claims for animals under the FHAA.[22] However, HUD administrative judges have ruled in favor of emotional support animals, despite their lack of training, as being reasonable accommodations.[note 2][22] Additionally, several courts have also ruled that untrained assistance animals are reasonable accommodations under the FHAA.[note 3] Yet, there are cases that have held an assistance animal, in order to be considered a reasonable accommodation under the FHAA, must be trained.[note 4]

See alsoEdit

NotesEdit

ReferencesEdit

  1. ^ a b c d e f g h Wisch, Rebecca (2015). "FAQs on Emotional Support Animals". The Animal Legal & Historical Center. Michigan State University College of Law. Retrieved March 23, 2016. 
  2. ^ a b c d e f g h i j k l m n o p q r s t u v Brewer, Kate A. (2005). "Emotional Support Animals Excepted From "No Pets" Lease Provisions Under Federal Law". The Animal Legal & Historical Center. Michigan State University College of Law. Retrieved February 28, 2014. 
  3. ^ a b U.S. Department of Housing and Urban Development (2013). "Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs" (PDF). Retrieved March 21, 2014. 
  4. ^ a b Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 (United States Court of Appeals for the Fifth Circuit 1981).
  5. ^ Whittier Terrace Associates v. Hampshire, 532 N.E.2d 712 (Appeals Court of Massachusetts January 20, 1989).
  6. ^ a b c d Judge David L. Bazelon Center for Mental Health Law. "Right to Emotional Support Animals in "No Pet" Housing: Fair Housing Information Sheet #6". Retrieved March 5, 2014. 
  7. ^ Fair Housing Act, {{{abbr}}} 1988, c. 42, s. 3602((h)) (Fair Housing Act at {{{linkloc}}})
  8. ^ a b Waterlander, Tara A. (2012). "Some Tenants Have Tails: When Housing Providers Must Permit Animals to Reside in "No-Pet" Properties". Animal Law Review. Lewis & Clark Law School. 18. Retrieved 13 October 2017. 
  9. ^ a b c d e f g h Huss, Rebecca J. (2005). "No Pets Allowed: Housing Issues and Companion Animals" (PDF). Animal Law Review. Lewis & Clark Law School. 11. Retrieved March 6, 2014. 
  10. ^ a b c d Duffly, Zachary. "Psychiatric Service Dogs & Emotional Support Animals: Access to Public Places & Other Settings". NOLO Law For All. NOLO. Retrieved March 2, 2014. 
  11. ^ "The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) on September 15, 2010, in the Federal Register". https://www.ada.gov/. U.S. Department of Justice. July 2011. Retrieved April 1, 2017. The DOJ’s new rules limit the definition of “service animal” in the ADA to include only dogs. The new rules also define “service animal” to exclude emotional support animals. This definition, however, does not apply to the FHAct Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. In situations where both laws apply, housing providers must meet the broader FHAct/Section 504 standard in deciding whether to grant reasonable accommodation requests.  External link in |website= (help)
  12. ^ Hudak, Stephen (February 18, 2010). "Dog Prescribed by Doctor May Get Couple Evicted from Mobile Home". Orlando Sentinel. Retrieved 13 October 2017. 
  13. ^ a b c Larson, Aaron (14 October 2016). "Should Landlords Have Rules Against Pets". ExpertLaw. Retrieved 13 October 2017. 
  14. ^ "Joint Statement of the Department of Housing and Urban Development and the Department of Justice – Reasonable Accommodations under the Fair Housing Act". United States Department of Justice. 13 May 2004. Retrieved 13 October 2017. 
  15. ^ "Dorms Must Accept 'Emotional Support' Dogs, HUD Says". Law Blog. The Wall Street Journal. May 16, 2013. 
  16. ^ Jan Hoffman (October 4, 2015). "Campuses Debate Rising Demands for 'Comfort Animals'". The New York Times. Retrieved October 5, 2015. 
  17. ^ "Emotional Support Animals". Service Dog Central. Retrieved December 27, 2007. 
  18. ^ "Aviation Consumer Protection and Enforcement". US Department of Transportation. Retrieved December 27, 2007. 
  19. ^ a b c d Witz, Billy (November 15, 2013). "Emotional Support, With Fur, Draws Complaints on Planes". The New York Times. Retrieved March 1, 2014. 
  20. ^ Southwest Airlines. "Traveling with an Emotional Support Animal" (PDF). Retrieved March 2, 2014. 
  21. ^ JetBlue Airlines. "Service and Emotional Support Animals on JetBlue Flights" (PDF). Retrieved March 2, 2014. 
  22. ^ a b Ligatti, Christopher C. (2010). "No Training Required: The Availability of Emotional Support Animals As A Component of Equal Access for the Psychiatrically Disabled Under the Fair Housing Act". T. Marshall L. Rev. Thurgood Marshall School of Law. 35. SSRN 2142597 . 

External linksEdit