6 December, 2016

Emotional Support Animal Rights – A Legal Perspective

Emotional Support Animal Rights SupporterCountless studies across the years have shown that pets provide a wide range of health benefits, both physical and emotional. But when you are renting your living accommodations and you depend on an emotional support animal (ESA), where do your emotional support animal rights end and your landlord’s begin?

We’ve put together this article to give you an idea of what your rights are (the law is definitely on your side) and what the landlord has to lose (turns out it’s quite a bit).

See If You Qualify for an Emotional Support Animal

We’ve taken the time to ask expert attorneys some of the most frequently asked questions about emotional support animal rights that should matter the most to you. The following attorneys have been kind enough to answer these questions so that you no longer have to wonder what your right are:

  • Shaolaine Loving obtained her law degree from Cornell University subsequent to receiving her BA in Psychology from Stanford University. She has counseled hundreds of individuals in legal areas, including landlord-tenant law and real estate law. Ms. Loving has also taken on pro bono cases through the Legal Aid Center of Southern Nevada.
  • Matthew Kreitzer, a graduate of the College of William and Mary School of Law is currently a trial lawyer for Booth & McCarthy Law Firm in the state of Virginia. Matthew has significant experience in dealing with landlords and discrimination in the legal arena.
  • Jeff Haynie, a graduate of the University of Georgia Law School, is chief of the Fair Housing Division for the Jacksonville Area Legal Aid who’s efforts include remedying unlawful discrimination in housing. Jeff is also co-chair of the Housing Umbrella Group of Florida Legal Services, Inc., a state-wide group of attorneys and law professors who advocate for low-income tenants and consumers in Florida’s state and federal courts and before the Florida legislature.

We hope these answers will help clear up any confusion and allow you to stand on your rights as a tenant with an emotional support animal. Here’s what they had to say!

What is the best advice you can offer a tenant who is preparing to give their landlord an emotional support animal (ESA) letter while avoiding any potential conflict?

Start by educating your landlord on your need and the laws protecting emotional support animal rights.

Matthew: Educating the landlord is the best way. There are Federal guidelines that the landlord must be made aware of as well as the repercussion of violating those laws.

Jeff: HUD will accept any complaints regarding discrimination and will utilize the Department of Justice as it’s enforcement arm and engage the landlord in court. If the landlord can not prove that there was no possibility for reasonable accommodation for the animal, they will often times face very harsh and expensive penalties.

When a tenant is recommended for an ESA, what is the landlord legally allowed to ask with regards to the mental diagnosis? Is the landlord legally able to ask for details of the diagnosis or the length of treatment?

The landlord can NOT ask for this information, only that there is a disability and the ESA documentation letter proving the need for the animal.

Jeff: Generally, a landlord is NOT legally entitled to specifics regarding the tenant/patients diagnosis. The main 2 inquiries that can legally be asked: is there the existence of a disability AND documentation that the patient needs the animal which are basically addressed by the ESA letter in the first place. Landlords can get into trouble by asking questions that may violate the tenants privacy.

Matthew: The letter only needs to confirm the existence of a condition. Also, without a third party authorization form, the therapist would be violating HIPAA.

Is it legal for a landlord to evict a tenant because the tenant has an ESA?

It is both illegal and very difficult. Evictions take place in a court where you’ll be able to present your documentation to the court during the process, proving discrimination.

Matthew: No, as that would be considered discrimination.

Is a landlord legally allowed to place a weight or breed restriction on an ESA?

Though many landlords will place weight and breed restrictions on pets in a rental, they will often make exceptions for assistance animals. For example, a black lab may easily exceed a landlord’s restriction based on weight, but will still be allowed as an assistance animal in those situations. However, if the landlord believes that the assistance animal will put other people in harm’s way whether due to size or breed, they may legally object under those circumstances. The landlord may make additional requirements in trying to make reasonable accommodations.

Jeff: This is a grey area as “reasonable accommodation” is a relative term. The landlord DOES have a responsibility for the safety of the other tenants so a pitbull could be considered an unreasonable accommodation.

He knows his ESA rights

If a tenant already paid a pet deposit, is the tenant legally entitled to a refund of that deposit?

Unfortunately, this isn’t a simple issue to address. Did you already have your assistance animal as a pet when you moved in and paid the pet deposit? It could be argued that by paying the deposit, you were acknowledging the animal as a pet rather than as an assistance animal. If you paid the pet deposit to prevent further action by the landlord while the ESA letter was being procured, it could be argued that you did so under duress because you were concerned about losing your home.

Jeff: It really depends on the sequence to how things developed as well as whether or not there was misrepresentation.

If a landlord refuses the ESA letter’s validity because it was obtained online, what should the tenant do?

The landlord needs to learn that the ESA letter is based on a valid diagnosis and that your state has a unique telemedicine policy that covers tele-medicine documentation. If they won’t listen, move forward with legal proceedings.

Jeff: Try to educate the landlord that there is a valid diagnosis as well as the state’s policy on telemedicine. If not, move forward with enforcement proceedings where the landlord can risk heavy penalties from HUD and the Department of Justice.

If the tenant needs to take legal action, can the case be taken on a contingency basis? How much can the landlord or defendant expect to pay for the case?

Because the laws are different based on your location, there is no simple answer to this question. However, it’s always possible to have the case taken on contingency or have the attorney’s fees recovered from the losing side in the case. A recent case in New Mexico sought $16,000 in civil penalties for each violation in addition to other expenses and damages.

Matthew: Depends on the state but generally, yes. This means that many attorneys, after reviewing the case, can take on a tenant’s case without any financial commitment. The attorney would then be compensated after winning the case, leaving the time and financial burden solely on the landlord to defend his or herself. Some states also allow for attorney’s fees to also be recovered…also known as Quantum Meruit.

Will the landlord usually give up on pursuing action when a demand letter is provided?

The cost of legal action and the media attention is often sufficient for most landlords to stop pursuing the issue, but all cases are unique because of local laws, the landlord’s policies and similar aspects.

Matthew: The cost and bad press forces most to settle. The amount of fees and penalties assessed at the Federal level are extremely high.

Jeff: Retainer fees for a landlord/property manager to defend in court can range from $150-$600/hour. Essentially, this can very easily lead to thousands of dollars in costs to the landlord as well as financial penalties handed down from the Department of Justice that could be crippling.

What advice can a tele-health company provide in these landlord tenant situations?

A tele-health company can provide suggestions to remedy the situation. As long as it is discloses that the tele-health company is not a legal expert, it is free to suggest anything related to emotional support animal rights.

Avvo.com is also a great resource.

A puppy doesn't know his legal rights

Do you have any advice to give a tenant that has been rejected by a landlord due to an ESA or had rejected the tenant’s ESA letter?

You have a few options available. If you can prove that the landlord has treated an individual with disabilities differently than they other tenants or prospects, you have a great chance of fighting the rejection for substantial damages. Take a look at this case in Utah that resulted in $16,000 in damages per violation on top of the legal fees that had to be covered by the landlord as well. Beyond legal action, you can complain to a local HUD office or an equal-rights agency, such as has happened in New York City. If you’re willing, you can take the risk that the landlord will retaliate by starting eviction proceedings, at which point you can provide documentation in court. You can also bring attention to the issue through the media.

Shaolaine Loving: The federal Fair Housing Act requires landlords to make reasonable accommodations for people with disabilities. So long as the tenant can prove that he/she needs a service dog or ESA, if asked by the landlord, then the landlord must allow the tenant to keep the service dog or ESA. Outside of seeking a lawyer, the tenant can lodge a complaint with outside agencies, such as the local branch of the U.S. Department of Housing and Urban Development (HUD) or any state-level agencies that investigates discrimination (e.g. the Nevada Equal Rights Commission in Nevada). Another option, if the tenant wants to take the risk, would be to wait for the landlord to retaliate, such as by trying to evict the tenant for having the service dog or ESA in the rental property. The tenant can then show the court proof of needing the animal for disability purposes to have the court set the landlord straight. A non-legal avenue that some people choose to pursue is garnering attention to the issue through media, particularly if the landlord is a larger entity like an apartment complex.

Emotional Support Animal Rights Conclusion

When you’re dealing with an uncooperative landlord over an ESA situation, it can be very intimidating because you may feel that your home is at risk as well as the mere mention of a lawyer being involved. But by simply knowing what your right are, you can rest assured that the law is on your side and you are protected by laws under HUD’s Fair Housing Act and the Americans with Disabilities Act. If your landlord isn’t willing to work with you after being presented with an ESA letter, just know that you have options that could result in your landlord paying dearly!

See If You Qualify for an Emotional Support Animal