If a dog breed is banned by the city do you have to accept as ESA

[Mindy Jensen]

Having a discussion at the office, and this question came up.

If a dog breed is banned by the city your rental is located in, do you have to accept it as an emotional support animal?

Pit bulls always get the bad rap, so let's use them as an example. The city of Denver has banned, among other breeds, pit bulls. If my tenant claims the pit as an emotional support animal, do I have to allow them or can I legally deny based solely on breed?

It sounds as though I can legally deny them, as the city of Denver says the animal cannot stay.

[John Barrett]

@Eric Carr 

Hi Eric, it looks like you missed this follow up post / convo I had with Kevin:

@Kevin McGuire

That's what I learned as well, that there were so many different "breeds". Honestly to me it made no difference to me about the dog. What I learned was that it was about a percentage of genetic markers aka what the animal looked like and supposedly acted like is what the city cared about. The reason why landlords in the US get into the legally of it is because if the neighborhoods, police, animal control, school etc get into something with your tenant as the property owner you are on the hook legally because you allowed the animal to "stay/live" there so you as the owner could face fines, charges, be sued for damages, etc. IF something happens or is reported. My property was also across the street from a school and kids and parents walk in front of the property daily while it has a fence I just didn't want to risk the fight or potential problem that I might have run into. Just didn't seem worth it, in my opinion.

I think technically I "could" have gotten around it, BUT it seemed like an added added risk that I was to get around by simply waiting for another tenant 

[Eric Parrow]

Thanks @Russell Brazil for that HUD PDF link... first time i've seen / read that - the meat and potatoes of the message is at teh bottom of page 2, top of page three.

"For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 requires an assistance animal to be individually trained or certified.5While dogs are the most common type of assistance animal, other animals can also be assistance animals"

Pretty clear for sure.   It also goes on to say if a specific animal poses a threat (not based on breed or size etc) then it could be denied... has to be individually considered.  

Great stuff.  I learned a lot Thanks!

[Eric Parrow]

Ok, so here is where I get confused... I was under the impression we couldn't ask details about a person's disabilities... and given this text from HUD, it sounds like we would have to ask more questions to find out if the person HAS a disability, which also has a related need for an assistance animal.

What keeps the tenant from flat out LYING about their Disability and "need" for a service animal?

From the HUD PDF on the 1st page of this thread., Page 3.

"(I) Does the person seeking to use and live with the animal have a disability — i.e., a

physical or mental impairment that substantially limits one or more major life

activities?

(2) Does the person making the request have a disability-related need for an assistance

animal? In other words, does the animal work, provide assistance, perform tasks or

services for the benefit of a person with a disability, or provide emotional support that

alleviates one or more of the identified symptoms or effects of a person's existing

disability?

If the answer to question (1) or (2) is "no," then the FHAct and Section 504 do not require a

modification to a provider's "no pets" policy, and the reasonable accommodation request may be

denied.

Where the answers to questions (1) and (2) are "yes," the FHAct and Section 504 require the

housing provider to modify or provide an exception to a "no pets" rule or policy to permit a

person with a disability to live with and use an assistance animal(s) in all areas of the premises

where persons are normally allowed to go, unless doing so would impose an undue financial and

administrative burden or would fundamentally alter the nature of the housing provider's services."

[Crystal Cody]

I found the following article regarding what a potential tenant can do if they are denied their emotional service animal.  You may want to take a look. 

https://www.servicedogcertifications.org/landlord-...

Im assuming you can ask for verification that the animal is an emotional service animal.  And then you can increase the security deposit in case there were to be damage to the home if your open to compromising. 

[Johann Jells]

Originally posted by @Joe Splitrock:

This was my thought reading the thread, what about goats, full size horses, elephants, whatever? How can there really be no limitation a municipality can enforce once someone invokes their right to an ESA? Has there been no case that parses the difference, if any, between banning pits and banning wild or farm animals?

@Crystal Cody, here in NJ it's illegal to take more than 1.5 months rent in security in any form, including last month or pet deposit.  Thankfully I have not run into an ESA problem in the 2 decades I've been renting "no dog" apartments.

[Crystal Cody]

@Johann Jells that makes complete sense.  Thanks! 

[Nigel Pepper]

Is this whole issue potentially negated by establishing (as someone suggested earlier) a schedule of damage fees which would be applicable on cessation of the lease?

• Urinated carpets? Replacement carpet dollar cost.
• Holes in walls? Replacement sheetrock, rendering, painting and labor cost.

etc etc.

Provided the schedule is established in advance, regardless of the presence of pets, this should be enforceable as a legal civil contract between you the landlord and the renter(s).  They can have their ESA, but it's going to cost them if there's damage to the property.

Regarding landlord insurance, if the presence of any animal invalidates your existing insurance, it may be worth seeing whether this change in cost to you, can be passed through to the tenant, as it constitutes a direct and attributable loss to you, by accepting them.

Disclosure: The above are ideas; I am no lawyer so the above should be validated by one should you wish to adopt such a strategy.

[Trevor Howard]

I would keep yourself covered first don't outright ban it. If they claim ESA then ask for documentation. If there is documentation you need to have that in their file. I would recommend along with the dogs shot records. That way if anything happens and the city decided to start knocking on doors you can prove your side of things to cover yourself. Most people with dogs don't mind paying extra to keep their animals and understand its part of the deal so having the addendum in the contract is something expected and a slightly larger deposit to cover damages is normal. I have a picture of my pit bull cuddling my 3 month old so I'm somewhat biased because they're all just big sweethearts. 

[Colleen F.]

I think it is a curious point that they may be allowed to have an emotional support animal but does it have to be this particular animal.  The doctor usually prescribes a dog not "fluffy" the dog.  I think for people acquiring a dog in such an area this could be a  relevant point.  I am not sure how this would work with a service animal for whom significant training has already occurred,  a court would and probably should view this differently but many organizations involved with service animals don't recommend aggressive/protective breeds for  this role 

My beef with emotional support animals is unlike service animals these animals are not required to be trained. Regardless of whether the HUD/ makes a distinction based on this point in my opinion they should take their lead off the ADA.

[Andy Gibson]

Just a lurker on this thread (and much of the site), but I wanted to point out that it's been proven time and time again that breed-specific legislation (BSL) doesn't decrease dog bites in municipalities and cities that implement them. 

If you have some free time, definitely do some research around BSL and the studies that have been released. I'm an owner of a rescue pit who's been shot in the face with buckshot and she's the absolute sweetest dog in the world and has 0 aggression towards humans or other dogs.

My hope is that the more people that research and learn about BSLs, the more people that will hopefully be vocal in voicing opposition to such legislation in their communities. Vilifying a breed because of how a subset of terrible humans bred and use them is not fair to an entire, wonderful breed of dog. 

Carry on :-)

[Shelby Thomason]

based on my experience with ESA'sin Arizona if it's not HUD/ Section 8 I'd deny them but if they are getting assistance I'd first ask for the doctors note ( these expire annually) and call your local rep to verify the HUD standing on them.

[Brian Garlington]

In the screening process of potential tenants i always ask will there be any animals (not pets, animals) living at the property? I also ask do you anticipate have any animals living at the property. 

In the lease I also say there are to be no animals living at the property, otherwise that will be grounds for terminating the lease. 

Yes, sometimes it may take me slightly longer to get a tenant, but if later on they say, I want to bring my ESA or Service Animal here to live with me, I simply refer to the part of the lease that says no "animals".   Maybe I've been lucky but it's worked so far.

[Clinton Fisher]

Iv'e found the local fair housing authority to be very easy to talk to and they are conducting research for me on a issue with my homeowners association. Specifically, they are finding me legal precedence on an issue with my homeowners association. I would think asking their opinion before taking action would inoculate a landlord to certain degree.

[Account Closed]

here in Austin tx my friend has a pit Bull in his apartment even though that breed is banned 

He claimed the dog as an emotional support dog and allowed him to keep it 

[Julie Coleman]

I am a landlord in Los Angeles who has recently reviewed a handful of applications, all whom claimed to have an ESA. Here is what I have learned.

1) An ESA can be legitimate need. It is unfortunate for those who use the system as it is intended since there are so many others who discredit the mission of the program with ineligible "pets" to forgo the pet deposit or pet rent.

2) It is VERY easy to get an ESA letter. By filling out an application online and paying $30, an applicant can have a ESA letter within 48 hours. Remember to do your due diligence and ask for previous landlord references, not only for the tenant, but also the ESA, certification letters and medical referrals suggesting the patient has an ESA. 

3) Even though a local ordinance may have aggressive breed restrictions, a landlord cannot discriminate against ESAs. In fact, Pitbulls are commonly a suggested breed for ESAs since rescue Pitbulls and owners can relate for being misunderstood. The landlord does have the right to deny the ESA if the individual animal is known to have or has shown aggressive behavior. The landlord has the right to evict the ESA (not the tenant) if the individual animal is aggressive. 

4) When a tenant declares on their application that they have a pet, we usually ask them to show us a picture of their pet when they come to see the property. People who love their pets usually always have a picture of Fido on their phone. Like a proud parent, a tenant is typically more than happy to show off their adorable pet. It's a quick and friendly way to vetting the breed without seeming discriminatory against their Pitbull upfront.  (This tip does not apply to ESAs. When it comes to ESAs be careful what you ask).

4) Verify with your insurance policy that the aggressive breed is covered, if not, the tenant may need to increase their renter's insurance policy to cover the damages of the pet. (not sure how ESA is insured)

5) There are advocate ESA renters groups in my area who train renters with ESAs how to search for housing. Check out their websites here to understand their strategies. 

6) It comes down to your individual market and situation as to whether or not you want to accept an applicant with an ESA. If they are great tenant otherwise, I say why not? Know that they are not all scams, but the scams that do exist are plenty. Do you homework, ask the right questions and determine what is best for your business.