Can you institute house rules for an ESA

Question

I have certain rules for pets that are included in my pet addendum. For example how they must behave, cleaning up pet waste promptly, pets can not be left unattended outside, tenants are responsible for flea infestations, etc. I understand that I can not charge a pet fee or pet rent for ESA. My question is can I apply the rest of my pet rules to an ESA dog?

If yes, do I just write up a separate ESA addendum with the rules? Is there anything that I can not include in those rules.? How do other’s handle this. BTW I am in NC.

TIA,

Julie Kuczmarski

If yes, do I just write up a separate ESA addendum with the rules? Is there anything that I can not include in those rules.? How do other’s handle this. BTW I am in NC.

TIA,

Julie Kuczmarski

Nathan Gesner · Answer

Unfortunately, the bureaucrats that think they now everything actually create more problems with their poorly written policies and lack of clarification. I have not seen any guidance regarding "behavior rules" for support animals. ADA has been around longer and actually does have some rules, but they are still incomplete when it comes to residential rentals. For example, ADA states a service animal must be under the control of the owner, meaning harnessed, leashed, or tethered. HUD guidance for ESA does not provide such guidance.

A service animal or ESA is supposed to be treated the same as a medical device, like a wheelchair or walker. With that in mind, would you allow a tenant to ram their wheelchair into doors? Bang their walker on the floor at 11PM? Run their walker up and down the miniblinds? Hit you with their wheelchair in the laundry room?

We cannot discriminate against the presence of an ESA, but we can place basic rules of decorum. My recommendation: get rid of your "pet rules" and create "Animal Rules" that apply to all. Keep the animal under control at all times when outside of the rental. When someone visits the rental for maintenance or an inspection, the animal must be under the owner's control, in a kennel, or removed from the rental. Use designated areas for going to the bathroom and clean up the feces immediately. No aggressive behavior. Always leashed outdoors and not taken into common areas except for ingress/egress of the rental. No barking. If the animal damages property, Tenant will repair immediately at their expense.

Remember we are required to make "reasonable" accommodation. It is not "reasonable" to allow an ESA to bark at all hours and disturb neighbors, display aggressive behavior towards others, damage the property, leave feces all over the parking lot, etc.

If the Tenant fails to maintain control, termination of their lease is reasonable and justified. You can never guarantee what will hold up in our judicial system, but this is one I am willing to take a stand on every time.

Julie Kuczmarski · Answer

Thank you Greg M and Richard F. This information is extremely helpful!

Richard F. · Answer

Aloha,

Our Assistance Animal Policy does have a number of conditions (rules) that are required to be followed. The exception is that, as with the overall concept of "making a reasonable accommodation" due to a qualifying disability, you may need to have a separate conversation and evaluation of certain specific rules. For example, we include "animal must be in a carrier or carried by the handler in confined spaces such as elevators, stairwells, and hallways" and "must be on a leash in other common areas, UNLESS this interferes with or prevents the service/task the animal provides the handler". The same applies to barking...if the animal is doing it's job to alert others or the handler of the onset of a seizure for example. Barking for hours when no one is home would be a nuisance issue, and subject the tenant to possible removal of the animal or tenant vacating...again after a "reasonable" accommodation with regard to timeline for such removal.

We also require a current Veterinarian's report on health and vaccination status; animal must be spayed or neutered to reduce aggressive behavior unless Veterinarian recommends against; offensive odors must not emanate from the residence and proper sanitation must be maintained within the unit. A microchip or identification collar is also required.

We were advised by counsel to have an Assistance Animal Policy separate from any Pet Policy. We do also provide a sample letter that applicants can use to request an accommodation for their Assistance Animal which specifically asks the two allowed questions, and requires a "reliable" medical or social professional to complete and provide their local office information. Unless someone is new to town, we do not find an out of state "professional" to be reliable, generally.

Greg M. · Answer

Tread carefully, but you should be able to have guidelines that apply to all residents that accomplish what you are seeking.

Tenant is responsible for flea infestation is generic and should be OK. You're not treating the tenant any differently that other tenants, as all tenants pay for any flea infestation.

Animals (not pet) cannot be left unattended outside similarly applies to all tenants. Same as picking up animal (not pet) waste.

Julie Kuczmarski · Answer

I am not looking to charge any fees. Just guidelines that the tenant must follow about the ESA. I have looked over the HUD guidelines and am still unclear about whether I can institute these guidelines.I also would like to find out of if  I can require that the tenant's rental insurance include coverage for dog bites.

Greg Scott · Answer

A service animal, including an ESA, is not legally a pet.  You would need to be very careful about how you proceed with fines. I'd look first to rules that are common to ALL residents.

On a related note, fake ESAs are VERY common these days.  You should familiarize yourself with the HUD guidelines for landlords regarding ESAs.  We used it to develop a screening process that eliminates 90% of the ESA requests.

Using these guidelines we have been able to remove ESAs that were aggressive towards other animals and residents.