Tenants Guest wanting to keep an ESA at property

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Tenants Guest wanting to keep an ESA at property

Ashly McGlassonPro Member
Jacksonville, IL · Member since 2017 · 16 posts · 6 votes

Hey BP! 

So we just purchase a property about a month ago. One of the tenants had his uncle staying with him after a separation, he must have started staying there right before we closed and took possession. Well the uncle brought with him two giant german shepherds. After we closed we told them we weren't allowing any pets over 40lb and that would be once we sign new leases. The actual tenants current lease say no pets. 

We gave them to weeks to find a new place for the dogs, they got rid of them before the end of the 14 days. Then today the Uncle asked if he can be added to the lease and now he has a "certificate" that his dogs are emotional support animals. 

After talking with my lawyer he think just telling them we are in a legal binding contract with the tenant, and his contract says no pets, that we can stick with the current lease of no pet policy and won't be be discriminating against anyone because the uncle and his dogs aren't even our tenants. 

Just wanted to get others opinions on the matter. Also, I'm in Illinois if that makes a difference. 

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Nathan GesnerBusiness Member
Moderator
Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
4y

Ok, more bad advice above.

First and foremost, the uncle is not your tenant. You should stop communicating with him, period! Your communication should be with the legal occupant only. Give him written notice that the Uncle is not an authorized tenant and should not be living in the unit. If the tenant asks to add him to the lease, deny it and tell him he can live alone per the lease or he can move out.

Even if Uncle were a legal occupant, there's no such thing as a "certificate" for an ESA. It's probably a fraudulent document purchased off the internet. HUD has already said those can be rejected. An ESA must be prescribed by a qualified medical professional and there can only be one ESA per disability.

Again, it's a pointless discussion. He's not on the lease, he should not be allowed to stay for more than a couple weeks (or whatever your lease allows), and if the Tenant refuses to remove him then you have the right to terminate the lease and get rid of both of them. My preference would be to hit the tenant hard and tell him to straighten up or get out.

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  • Kenny Dahill
    Investor · Tempe, AZ · Member since 2018 · 1k+ posts · 731 votes
    4y

    Hi @Ashly McGlasson, I'm not a legal expert but agree with your attorney.

    The contract is in place and binding.  Most leases state a max limitation for any guests before they have to be added to the lease agreement.  If your current lease says no pets, they are in breach of contract.

    Is there a reason you decided a 40lb limit for dogs?  Charging a pet rent can help increase your potential profits.

    1Reply
  • Caroline Gerardo
    Lender · Washington DC · Member since 2015 · 2k+ posts · 2k+ votes
    4y

    Does Uncle have perfect credit and employment record? I would look at what standard you set for current tenant and deny adding a tenant based on your rules.

    1Reply
  • Mary M.
    Rental Property Investor · Portland OR · Member since 2018 · 2k+ posts · 3k+ votes
    4y

    ESAs are not pets. get a new atty 

    ok, i will edit this - are you prepared to get sued? are you willing to be a test case? Maybe the best thing to do is ask if they want out of their lease. But depending on where you are located you are opening a huge can of worms and if the tenant decides to lawyer up it will just cost you $$$$

    You might check your local covid rules, i know in OR that anyone can move in and I cant do anything about it.....  as long as the emergency declaration is in effect. 

    0Reply
  • Ashly McGlassonPro Member
    OP
    Jacksonville, IL · Member since 2017 · 16 posts · 6 votes
    4y
    Originally posted by @Mary M.:

    ESAs are not pets. get a new atty 

    ok, i will edit this - are you prepared to get sued? are you willing to be a test case? Maybe the best thing to do is ask if they want out of their lease. But depending on where you are located you are opening a huge can of worms and if the tenant decides to lawyer up it will just cost you $$$$

     The point is that the uncle is not my tenant. I understand the rules for tenants and ESA.  But he's not leasing the apartment from me. 

    2Reply
  • Mary M.
    Rental Property Investor · Portland OR · Member since 2018 · 2k+ posts · 3k+ votes
    4y

    yeah, I understand. Does your lease state that he needs to be screened? That is the route I would probably take, but check to see if your local laws around covid have affected this in some way.   Then, I guess decide if you want to buy the tenant out...  as it sounds like they are not following your rules. 

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  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    4y

    Ok, more bad advice above.

    First and foremost, the uncle is not your tenant. You should stop communicating with him, period! Your communication should be with the legal occupant only. Give him written notice that the Uncle is not an authorized tenant and should not be living in the unit. If the tenant asks to add him to the lease, deny it and tell him he can live alone per the lease or he can move out.

    Even if Uncle were a legal occupant, there's no such thing as a "certificate" for an ESA. It's probably a fraudulent document purchased off the internet. HUD has already said those can be rejected. An ESA must be prescribed by a qualified medical professional and there can only be one ESA per disability.

    Again, it's a pointless discussion. He's not on the lease, he should not be allowed to stay for more than a couple weeks (or whatever your lease allows), and if the Tenant refuses to remove him then you have the right to terminate the lease and get rid of both of them. My preference would be to hit the tenant hard and tell him to straighten up or get out.

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    17Reply
  • Mary M.
    Rental Property Investor · Portland OR · Member since 2018 · 2k+ posts · 3k+ votes
    4y

    I just want to point out that LLs need to check their local laws. The Covid emergency declarations have changed some things we LLs take for granted. In some areas tenants can have unauthorized "roommates" for the duration and that can not be used as a way to evict.  Check your local laws. 

    One thing I have learned - if there is a way to amicably resolve issues that dont involve lawyers that is the best way to go. A years worth of profit will disappear overnight if an attorney gets involved. Tenants can get free legal help.  So I have learned to find the best way forward that may not be my favorite outcome but if it saves me from paying for an attorney and I get paid my rent? I am good. 

    1Reply
  • Theresa HarrisPro Member
    Member since 2019 · 15k+ posts · 11k+ votes
    4y

    ESA are often a loophole to allow pets. If the uncle stays, ask for documentation from a real doctor, not an online site.

    The bigger concern is the uncle.  How long is he planning on staying there?  Is there a limit in the lease on how long guests can stay?  If the uncle has been there for a month, he's had time to find his own place.

    1Reply
  • Jonathan KlemmBusiness Member
    Moderator
    Contractor · Chicago, IL · Member since 2016 · 4k+ posts · 2k+ votes
    4y

    @Ashly McGlasson - Sorry to hear about the tricky situation you are in.  First off sounds like you are handling it perfectly, great job!

    I'd follow the advice of the attorney.  Don't add the uncle to the lease and let it play out.  Then get rid of your tenant and the uncle so that you can start fresh and vet your next tenant properly.  Be thankful you aren't here in Chicago with our strict guidelines.

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  • Dan H.Pro Member
    Investor · Poway, CA · Member since 2015 · 7k+ posts · 8k+ votes
    4y

    I agree with @Nathan Gesner that unless your lease states otherwise, you do not have to take on new tenants (even extended family tenants - I suspect not true for immediate family such as new born or newly wed).  So the fact that the uncle has an ESA is immaterial as he is not your tenant and you are not obligated to add new tenants.

    As others have stated, ESAs are not pets as defined by HUD. There are many bogus ways to get ESA authorization. You can search on the internet and find sites that will provide ESA approval without ever seeing the tenant seeking the ESA authorization. To reduce the issue related to bogus ESAs, we use PetScreening.com. I do not claim that they do a great job of eliminating bogus ESA. What I do believe they do is provide the perception of doing a good job eliminating bogus ESAs. Note if you are a prospective tenant who got approved for an ESA by simply paying a fee are you more likely to pay the application fee to apply for a unit that does no screening of the ESA or more likely to pay the application fee for a unit that states up front that all applicants must fill out a profile on PetScreening.com? When asked why the perspective tenant must fill out a profile with PetScreening.com, you tell them that PetScreening.com screens for ESA authorization that is provided simply for paying a fee (bogus ESAs). Since we have started using PetScreening.com our number of applicants with ESAs has declined significantly.

    It really comes down to you want there to be units that are easier for the tenants with bogus ESA to rent.  It is like home security.  Most homes with security are not that hard to circumvent.  However, if you have security and there are homes without security, it is just easier for the culprit to choose an easier target.

    Good luck

    2Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    4y

    @Dan H. I also use Petscreening.com and they are great. They originally weren't much help because I held a tighter standard than they did regarding ESAs. With the new HUD guidance issued in January 2020, Petscreening.com caught up with me and is doing a much better job at weeding out the fraudsters.

    Petscreening.com has reduced the number of ESA applications by at least 50%. However, the number of ESAs authorized continues to rise because more renters are learning how to game the system.

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  • Dan H.Pro Member
    Investor · Poway, CA · Member since 2015 · 7k+ posts · 8k+ votes
    4y
    Originally posted by @Nathan Gesner:

    @Dan H. I also use Petscreening.com and they are great. They originally weren't much help because I held a tighter standard than they did regarding ESAs. With the new HUD guidance issued in January 2020, Petscreening.com caught up with me and is doing a much better job at weeding out the fraudsters.

    Petscreening.com has reduced the number of ESA applications by at least 50%. However, the number of ESAs authorized continues to rise because more renters are learning how to game the system.

    >However, the number of ESAs authorized continues to rise because more renters are learning how to game the system.

    In my market this (bogus ESA approvals) has been a problem for quite a while.  It seems everyone with an animal has an ESA approval.  It has been this way for at least a few years.

     >Petscreening.com has reduced the number of ESA applications by at least 50%.

    It is my belief that I have seen significantly greater reduction than 50% and probably greater than a 75% reduction.  As my initial post indicated, if I am not the easiest LL to get a bogus ESA approved, those tenants with bogus ESAs simply apply elsewhere.  We also charge $35/tenant for applying and we do not refund their application fee is PetScreening.com rejects their ESA.  If they have a bogus ESA approval, it is in their best interest to apply elsewhere.

    It is not my intent or desire to not have legit ESAs.  My preference is that the tenants with the legit ESA choose our units that allow pets of the same type of animal as their ESA but we understand that HUD does not allow us to not allow legit ESA in any unit.  I do not agree with HUD as most large, young dogs really need an outdoor space but HUD gets to set the rules.  We have quite a few units that allow pet dogs, but these units seldom have turn over and 2 of the units we allow pet dogs are currently pet free (people without pets sometimes like to have their own private yard).

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