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What does the law say about service animals?

The law is clear. A service animal is not a pet. Title III of the ADA says that a service animal is a “dog that has been individually trained to perform work or specific tasks to assist an individual with a disability.” Title III of the Americans with Disabilities Act (ADA), and state anti-discrimination laws prohibit businesses from discriminating against people with disabilities that use service animals.

A number of federal laws also require housing providers to make reasonable accommodations and reasonable modifications for those with disabilities, including permitting access to service animals. In addition to tenants and home seekers with disabilities, federal nondiscrimination laws that protect against disability discrimination also apply to home purchasers and renters without disabilities but who live or are associated with individuals with disabilities. These laws prohibit landlords from denying potential tenants with disabilities or placing conditions on their residency because they require a reasonable accommodation or modification.

The Fair Housing Act (FHA) makes it illegal to refuse to make reasonable accommodations to rules, policies, practices, or services when an accommodation may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a residence and its common use areas.

How are service animals different from emotional support animals?

Title III of the ADA aims to ensure people with disabilities have equal access to goods and services. This federal law requires service animals to be permitted in places of business. As a result, businesses are required to make reasonable modifications to ensure people can access their properties and have equal opportunity to conduct business.

Businesses are permitted to ask if the animal is required because of a disability, and what specific task the animal has been trained to perform—but only if the need for the service animal is not obvious. However, businesses cannot ask about an individual’s disability or require other documented proof that the animal is a service animal.

In contrast, emotional support animals are not considered service animals, which means business owners may not have to give them equal access. Also, state laws vary on the rights of emotional support animal owners.

How do rules about service animals apply to tenants?

While landlords and housing providers have the right to implement a “no pets” policy for their properties, service animals are not pets. Under the Fair Housing Act, housing providers such as landlords, HOAs, co-ops, and condominiums are required to make reasonable accommodations for service animals. In addition, landlords cannot charge pet fees or deposits for service animals. Housing providers may only deny a tenant’s request to reside with a service animal in some limited situations.

The U.S. Department of Housing and Urban Development says that “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.” The ADA often refers to these types of accommodations as “modifications.” Permitting an assistance animal in a “no pets” building for a person who requires a service animal is a reasonable modification, despite no structural changes being required.

To qualify for reasonable accommodations, a tenant with a disability is required to have either:

  • A physical or mental impairment that impacts activities of daily life.
  • A history or medical record of the disability-related impairment.

The U.S. Department of Housing and Urban Development (HUD) has stated that assistance animals are permitted if the individual has a diagnosed disability affecting major life activities, and if the animal has completed training to perform specific tasks for the individual. If qualified, the individual can take the animal anywhere they themselves are allowed to go. HUD states that this extends to emotional support animals, but only if a diagnosed mental disability or disorder diagnosed by a licensed mental health professional requires their use.

In addition, state and local laws may also impact these rules.

When can a landlord deny a tenant with disabilities or refuse to make an accommodation?

A Lease Agreement may include a Pet Application Form, a Pet Addendum, or a Lease Amendment. Landlords, however, may want to be careful as there are restrictions on what may be asked about a service animal.

A landlord can deny a request for a reasonable accommodation or modification if there is no disability-related need for it. A request for a reasonable accommodation or modification may also be denied if providing the accommodation or modification would impose an undue financial and administrative burden on the landlord, or it would fundamentally alter the nature of the building. 

What is considered an undue financial and administrative burden depends on various factors. Even when a requested accommodation imposes a significant burden, a landlord may be required to provide a different accommodation that would not result in that burden or fundamental change. Before denying a request, landlords may reach out to explore other options.

What are emotional support animals?

In contrast to service animals, emotional support animals (ESAs), also known as companion animals, do not require any specialized training to help a person cope with the effects of a handicap, such as a mental disability. Sometimes called psychiatric service dogs, these animals do not have to be trained for specific tasks. An emotional support animal can be any type of domesticated common animal that people keep as pets. There are many types of animals that serve as ESAs. Dogs, however, are the most popular type of emotional support animal. 

ESAs can provide therapeutic comfort for individuals who are suffering with mental, psychological, or emotional issues such as depression, anxiety, and post-traumatic stress disorder.

The ADA does not provide accommodation for companion animals in public places like restaurants and retail shops. The Fair Housing Act, however, permits companion animals except in common areas of the rental property. If a person satisfies the criteria for ESA qualification under the FHA, they can live with an emotional support animal free of pet charges and deposits, even if the building does not allow pets. Additionally, landlords may not impose breed and weight restrictions on an emotional support animal.

Many state laws are similar or identical to the FHA, which may provide additional protection against discrimination for owners of emotional support animals.

What if my landlord or a business owner says my service animal is a direct threat to others?

Tenants and business customers with service animals are required to keep their service animals under control. If there are legitimate complaints that a service animal is creating problems on the property, a landlord may be able to evict both the tenant and the animal, and a business owner may ask the customer to leave with their service animal.

If there is an issue with a service animal, however, it may be a misunderstanding. In that case, service animal owners may be able to explain the situation or work out a compromise. But if a service animal is aggressive or out of control, the situation may be more complicated. The safety of other tenants and guests allows property owners to evict a tenant or deny an application, and allows business owners to remove that guest if a service animal is not under control and poses a threat to others.

In addition, landlords may only ask for limited documentation that shows a service animal is required. They may also require a service animal be up-to-date on shots and veterinary care to ensure others on the property are as protected as possible. 

If you have more questions about service or emotional support animals, reach out to a Rocket Lawyer network attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.


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