Emotional Support animals

[Sean McNealley]

Hi there, first post on BP but figured this would be a good place to get some advice. 

I have had a tenant for roughly a year now, and we do not allow pets (unless they were there when we purchased the property) she hasnt had an animal for the last year. She all of the sudden needs an emotional support animal. My fear is that every tenant in my 6 unit will get upset and say its not fair etc. Has anyone had any experience with how to address this issue? Any advice would be appreciated, thank you

[Steve K.]

ESAs are not service dogs and are not protected under the ADA. They are however protected under the FHA, but it's not carte blanche. A lot of people think getting an ESA letter for $99 off the internet will allow them to have a pet in an apartment with a no pets policy, no questions asked. This is not true. Many ESA letters purchased online are not even valid. ESA Certification requires diagnosis from a mental health professional, signed by an actual Dr. on their letter head. So for starters you could ask her if she actually has a Certified ESA diagnosis that you can verify with her Dr.

Legal reasons a landlord can deny an ESA include:

1. The animal is too large for the accommodation size. 
2. If the building has 4 units or less and the landlord lives in one of the units.
3. If the property is a SFH and the owner owns less than 3 SFH's.
4. If the animal brings an undue financial hardship to the landlord.
5. If the animal causes damages or harm to others in the building.

I recently got rid of a tenant who marked "no pets" on their application for a unit that was advertised with a strict no pets policy, and then within a month of moving in, during a scheduled inspection, I found they had a dog and a cat (penned up all day in big piles of their own poop and urine, bordering on animal cruelty). I issued them $200 fines for each lease violation and gave them 24 hours to remedy according to the lease. They sent me some ESA paperwork the next day that looked pretty bogus, probably downloaded from the internet that morning, and I replied with an eviction notice.

They threatened hiring a lawyer, which I welcomed. Surprisingly, they actually did get a lawyer, who requested a mutual rescission: they would forfeit their security deposit along with the $400 due in fines and be out at the end of the month. I seriously thought about moving forward with the eviction anyway just to give them the lesson of having that on their record, but ended up agreeing to the rescission and they left and I kept every penny of their $2,500 security deposit. I'm guessing their lawyer didn't think they had a very strong case with their ESA letter if we went to eviction. 

If a tenant is going to pull this crap; not having a pet when they move in then gaming the ESA system to get around a no pets policy, I'm going to find a way to get rid of them one way or another whether it's a different lease violation unrelated or whatever it takes. There are plenty of ways a landlord can play hardball in situations like this, and plenty of good tenants waiting in the wings to replace lying cheating ones.  

My experience with eviction court is if either party is shown to be dishonest or unforthcoming, the judge cuts through the BS and comes down on them hard. I don't see most judges siding with a tenant in a case like this despite what the websites selling ESA letters for $99 advertise. 

The ESA loophole needs to be tightened up. I would guess a high percentage of the time the policy is being exploited by those who don't really have a legit need for an ESA and they are ruining it for those that actually do. A lot of times both tenants and landlords don't know the difference between an "ESA letter" downloaded online and an actual ESA Certification from a mental health diagnosis.

I'm not privy to all the details in your case (maybe she really does have a legit need for an ESA) but if you suspect she's trying to game the system or just really don't want pets, I would explain why you have a no pets policy and play hardball with her or you will risk having ESA's in all 6 units in the near future. Ask her if her ESA is certified by a mental health professional that you can call to verify or if she just downloaded an ESA letter. Inform her that if her ESA is disruptive or causes undue financial or administrative burden on you as the landlord, or disrupts the right to quiet enjoyment of others in the building, you have the right to deny her and/or evict her and you will exercise that right. 

Don't feel bullied into letting her get a pet.