Fair Housing - Therapy Animals and Pet Deposits

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Fair Housing - Therapy Animals and Pet Deposits

Adam Giles
Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes

I have been searching around in previous discussions and have not found anything specific regarding my concern so I am posting this discussion on an admittedly common subject so people can hopefully share any experience. 

My concern is regarding therapy animals. Based on the recommendations of others, I plan on asking for a reasonable form to be filled out by a provider when tenant claiming a therapy animal applies for one of my properties that has either a no pet, or pet deposit requirement. I was recently presented with a specific scenario that I had not encountered before and I am wondering if anyone else has run across it. I will, of course, be running it past my lawyers as well. It goes a bit beyond the intial accommodation.

The issue is when a tenant has a legitimate not from a provider that says a therapy animal is "prescribed", but the tenants has multiple animals. There is a big difference between making a reasonable allowance for a specific therapy cat, and a therapy zoo. So I am wondering if I can charge my pet deposit for the additional animals. For instance, if the doctors note does not specify that the tenant needs 3 cats and 2 ferrets for their therapy, am I now ok to charge the deposit?  

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Ryan MurdockPro Member
Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
9y

I find it ironic that the ESA can quell a tenant's anxiety and in turn give me, the landlord, a like amount of anxiety.

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  • Ryan MurdockPro Member
    Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    Each service/therapy/support animal should be individually "prescribed". If no specific note for an animal it's a pet and falls under "pet" rules which means you can prohibit or restrict them as you would any other pet.

    Just beware, though, that once you start enforcing "pet" rules the tenant is very likely to go get therapy/service notes for any that don't already have them.

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  • Chris Martin
    Investor · Willow Spring, NC · Member since 2009 · 5k+ posts · 3k+ votes
    9y

    See also , specifically the links provided by @Steve Babiak

    I am not an attorney, but you need to be very careful with handing ESA issues. Just my 2 cents

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    That seems to be the consensus of what I'm reading. It seems folks can just go online and get a letter for anything thing they want. FHA seems to rely vaguely on what is "reasonable". It seems like fair common sense that an additional 4 animals of the same type would not provide much addition emotional support however quadruple the chance that the landlord will end up with urine stains on their flooring.

    Its a bit of a free for all at the moment it seems. 

    You response brings up another nuance question. There does not seem to be any specifics on what must be in the letter form the provider. Based on the templates I am seeing on the "get you ESA today" websites, I am not anticipating any pet specific information in the letter. More they simply state "I am prescribing a support animal". It seems the tenant can apply the letter to their new crocodile if they wish. However, it seems that in many rulings the court has required there be a  specific "nexus" between the condition and the specific animal. This of course, is meaningless in many cases because the most common condition ESAs seemed to be prescribed for is some for of anxiety. Any loving creature could assist with this. 

    It would appear, at least for the time being, that  we might as well just plan on having pets in all of our properties.......excuse me, not pets....support animals....

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  • Ryan MurdockPro Member
    Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    I find it ironic that the ESA can quell a tenant's anxiety and in turn give me, the landlord, a like amount of anxiety.

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  • Lynn McGeein
    Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes
    9y

    So it would seem to me that if the note says "a therapy animal is prescribed" then that means one therapy animal, not multiple.  It will be very helpful to let us know, if possible, what your attorney recommends as this issue frustrates me as well.  I would hope, however, that the tenant would not meet other valid criteria so I wouldn't have to deal with it, anyway.   

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  • Ryan MurdockPro Member
    Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    Multiple service animals are allowed but each one must have its own documentation. A tenant can't just get a blanket pass for whatever animals they want to drag home.

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    I will provide updates as I discuss this with my lawyer. So far its ambiguous, even for the lawyers, because the ESA case decisions are all over the map so far. It seems so far like it is reasonable for me to request a letter for each animal. Otherwise, how am I to know what is a pet and what is a service animal. Another consistency has been that the letter needs to show a disability and provide a link to the animal as treatment for the disability. A note stating "a pet would be helpful" for instance, does not constitute an ESA. There is very little detail in FHA but that is one area where there does seem to be consensus. If I do not receive documentation for each animal, I will likely charge the pet fee for those without documentation as I have no reason to associate them with any disability. I think that is key here.

    Lynn - I agree and I do require screening which has not been done yet. Perhaps the short term resolution lies there. 

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  • Account Closed
    Investor · Princeton, TX · Member since 2014 · 1k+ posts · 1k+ votes
    9y

    @Adam Giles   BE VERY CAREFUL.  Many of the people with ESAs are disabled military veterans.  Chances are judges and juries will give them the benefit of the doubt when they are crying on the witness stand about "your greed" and the "intentional emotional damage" you have caused.

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  • Ryan MurdockPro Member
    Rental Property Investor · Austin, TX · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    There needs to be a demonstrated benefit that each ESA provides. Unfortunately for landlords, that can be as simple as "Sam the Walrus relieves the tenant's social anxiety....". 

    Pretty tough to disprove that.

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    And it seems to be generally accepted that this relationship between an animal and the condition should be stated in the provider letter. It seems in some of the ESA cases the tenant has failed to prove a "nexus". Saying "Billy needs a walrus for his anemia" hasn't been adequate.  Unfortunately, as previously stated, the strong majority of these new ESAs simply state "needs dog for anxiety". Hard to fight that. 
    Again, my current situation however, and where I really need clarity, is....."needs 4 cats, a ferret, a pig, and a giraffe for anxiety". One would think that managing a zoo in a 2BR 800sq ft home would be quite stressful.  Apparently it's therapeutic. 

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  • Scott Weaner
    Rental Property Investor · Yardley, PA · Member since 2008 · 1k+ posts · 561 votes
    9y

    There is a difference between a true service animal and an emotional support animal. I don't think that we have to allow an emotional support animal in the same way as a true service animal which performs an actual task for the owner for a real disability.

    EDIT: If the emotional support animal is for a true, documented disability, then they too have to be allowed. So, someone who has anxiety but is not disabled because of that diagnosis should not require an emotional support animal.

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    I have to spoken to my lawyer and my local HUD office and that is the key Scott Weaner. The law requires us to make an accommodation when the animal provides a service for a disability. Therefore we have the right to a letter from a provider that states those two things:

    1 - there is a disability

    2 - this animal serves in the treatment of that disability

    It is also acceptable for us to validate the letter. In my case I will also be trying to validate that all of the animals are prescribed for the treatment. Especially if the notes all come from separate providers. We are allowed to discuss reasonable alternatives. For instance, if a disability required wheelchair access and you have another similar unit available tat already has access, it is ok to suggest the alternate unit instead of accepting the cost of modifying the requested unit. It seems reasonable that if 5 different providers prescribed one support animal for anxiety, and not suggest additional animals are needed, it should be a reasonable alternative that one animal be allowed. 

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  • Jim Adrian
    Architect · Papillion, NE · Member since 2015 · 1k+ posts · 840 votes
    9y

    @Adam Giles

    Here are some additional resources:

    https://www.nsarco.com/emotional-housing.html

    http://www.humanesociety.org/animals/resources/tips/assistance-animals-tenants-rights.html

    https://www.ada.gov/regs2010/service_animal_qa.html

    BP topic on Nebraska pets... 

    https://www.biggerpockets.com/forums/52/topics/387208-pet-question-in-Nebraska

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    Thanks for that, but again, most of the available information, and even cases, associates the language of ADA and FHA or discusses the differences between ADA and FHA. I am actually fairly comfortable with all of that. My particular issue/question resides with the multiple animal for a single diagnosis part of the problem. There isn't much out there that provides guidance on how to handle a tenant that has 10 letters for 10 pets, for a single disability. Of course we would all make allowance for two different animals that perform two separate tasks that require separate training; one to wake for the door bell, one to remind for meds for instance. But what do we do when a tenant has multiple animals that all perform the same task, for the same disability, and the tenant has separate notes, from seperate providers for all of them.

    This is the nature of my concerns.

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  • Jim Adrian
    Architect · Papillion, NE · Member since 2015 · 1k+ posts · 840 votes
    9y

    Could you request that the letters be reviewed and approved by all doctors?    Let the doctors red flag this.  Include all orders from the different doctors in one packet of information you send out to everyone be verified.  State that it looks odd to have this many requests and ask if this is normal.  Can you delay the process if the doctors don't respond?  I have a feeling the tenant will trip up here and you cant move forward until all the reviews are done.   Talk with the tenant and see how many animals they really want in the house. When there is expires take back the property if you don't want animals in the house.   Good Luck! 

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    The lady at the HUD office seemed to think that was the best bet. Attempt to contact and verify. Ask for the tenants assistance in doing so if necessary. While verifying employment, credit, etc, etc, it seems perfectly reasonable that we verify a request for reasonable accommodation based on a disability. At this point I will feel comfortable charging my deposit if I am unable to verify any of the letters.

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  • Jim Adrian
    Architect · Papillion, NE · Member since 2015 · 1k+ posts · 840 votes
    9y

    You can not charge a pet/animal deposit on a comfort animal.   If this is a new lease, can you find a better qualified tenant?  I would sure try and stall out this applicant.

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  • Adam Giles
    OP
    Rental Property Investor · Flagstaff AZ · Member since 2016 · 64 posts · 49 votes
    9y

    Correct, but we are allowed to verify the validity of the of prescription. That is where I was in this situation. It does not seem probable or reasonable to me that a single person was prescribed 4 different animals for the same treatment. I told this prospective tenant that we would wave the fee for any animals prescribed with a letter and that I would just need a reasonable amount of time to validate the letters. This was done based on my conversation with my lawyer and with my local HUD office. For everyone's reference, the tenant responded once to ask again how much my pet deposit was, I reminded her it was $125, and she has since stopped responding. I continued on with my showings and applications and now have a great young couple in the property.

    This will be my process going forward:

    1. Notify prospective tenant fee will be waived with valid letters
    2. Request letter(s) and notify prospective tenant that I will need a reasonable amount of time to validate letter(s).
    3. If unable to validate letter(s), request prospective clients assistance in validating (contacting office etc)
    4. If validated, waive fee
    5. If unable to validate, charge fee

    Again, I am basing this off multiple recent conversations with my lawyer and with Omaha HUD office. I would say that using this process, and my due diligence in creating it, I should be able to make a reasonable case if a claim was made against me.

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  • Chris Martin
    Investor · Willow Spring, NC · Member since 2009 · 5k+ posts · 3k+ votes
    9y

    Thanks for the update. It looks to me to be a good guide for most states. I wouldn't include CA from what I've seen on BP, but certainly I plan to incorporate details from your last post in a proposal I will put forth to my membership in March for a comprehensive policy on applicants and tenants with therapy animals.

    Indeed, this is one post I would vote for 10X if I could. Good job on the follow up post.

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