In recent years, dog-related injuries have been on the rise, posing unique challenges for landlords, property managers, and real estate owners. As a landlord, it’s crucial to be aware of the increasing risks associated with service animals and emotional support animals (ESAs) and to take proactive measures to mitigate them. This comprehensive guide aims to equip landlords and property professionals with the knowledge and strategies to help navigate the complexities of accommodating these animals while minimizing potential liabilities.
By understanding the differences between service dogs and ESAs, and the differing legal obligations for accommodating each, landlords / property owners can create an inclusive environment for their tenants, effectively managing the presence of service animals and ESAs while ensuring the well-being of all residents.
What is the Difference Between Service Dogs and Emotional Support Animals?
Service dogs are specifically trained to perform tasks that mitigate the impact of a person’s disability. These tasks are directly related to the individual’s disability and aim to assist them in their daily activities. Service dogs are protected under the Americans with Disabilities Act (ADA) and are granted public access rights. They are allowed to accompany their handlers in all areas where the general public is permitted, including restaurants, stores, and public transportation. Service dogs assist with specific needs, such as guiding individuals with visual impairments, alerting individuals with hearing impairments to sounds, or assisting individuals with mobility impairments.
Emotional support animals (ESAs), on the other hand, provide comfort and emotional support to individuals with emotional or psychological disabilities. Unlike service dogs, ESAs do not require specialized training to perform specific tasks. They are prescribed by mental health professionals as part of a person’s treatment plan. ESAs are protected under the FHA and the Air Carrier Access Act (ACAA), which grant them certain housing and travel-related accommodations. However, ESAs have different public access rights than service dogs, meaning they may not be allowed in places where pets are generally not permitted.
Do Landlords Have to Accept Service and Emotional Support Animals?
Under the Fair Housing Act, landlords generally must make reasonable accommodations for individuals who require the assistance of service dogs or emotional support animals (ESAs). Landlords cannot deny housing or impose additional fees or restrictions solely based on the presence of a service animal or ESA.
According to the FHA and the ADA, a tenant may qualify for reasonable accommodations if the following conditions are met:
- They have a physical or mental impairment that substantially limits one or more major life activities.
- They have a history of such impairments.
- They can be regarded as having such impairments.
For service dogs, the Americans with Disabilities Act also mandates that landlords must allow individuals with disabilities to be accompanied by their service dogs in all areas where the general public is permitted, including rental properties and common areas.
However, there are some exceptions and limitations to these requirements. Landlords may be exempt from accommodating service animals or ESAs if they meet specific criteria. For example, small landlords who own a limited number of properties and live in one of the units may be exempt from FHA requirements. Additionally, landlords may have the right to deny accommodation if the animal poses a direct threat to the health or safety of others, or if the request for accommodation imposes an undue financial or administrative burden on the landlord.
It is important for landlords to understand and comply with the applicable laws and regulations in their jurisdiction. Consulting professionals who specialize in housing law and / or your risk management consultant / insurance broker partner can help landlords navigate the complexities of accommodating service animals and ESAs while ensuring compliance with relevant laws.
What are Reasonable Accommodations for Service Animals and ESAs in Housing?
Below please find a brief listing of examples of reasonable accommodations that landlords should consider:
- Exceptions to “No Pets” Policies. Landlords should waive pet restrictions or “no pets” policies when it comes to service animals and ESAs.
- Waiving Pet Fees or Deposits. Charging additional fees or deposits for service animals or ESAs may be discriminatory. Landlords should waive such fees, recognizing that service animals and ESAs are not considered pets but rather essential components of a person’s disability management.
- Accommodating Larger Dog Breeds. Some properties have restrictions on dog breeds based on size or perceived aggression. However, landlords should make exceptions for service animals and ESAs, regardless of breed, as long as they do not pose a direct threat to the safety of others.
- Flexibility with Documentation. Landlords may request reliable documentation to verify the need for a service animal or ESA (but may not ask for specifics about the disability). This can include letters from healthcare professionals or therapists confirming the disability and the necessity of the animal. However, landlords should be flexible and accept different types of documentation as long as they provide sufficient evidence.
- Access to Common Areas. Service animals should have equal access to common areas such as lobbies, hallways, elevators, and outdoor spaces. Landlords should ensure that these areas are accessible and do not pose barriers to the animals.
It is essential to remember that these accommodations are legally required under the FHA to ensure equal housing opportunities for all individuals, regardless of their disabilities.
Risk Mitigation Strategies for Landlords Regarding Service Animals and Emotional Support Animals
As a landlord, it’s crucial to implement risk reduction strategies to ensure the safety of both tenants and your property itself. By following these strategies, landlords can mitigate potential risks and foster a harmonious living environment for all residents.
Landlords Should Review Insurance Before Welcoming Pets
Before allowing service animals and ESAs on the premises, landlords should review their own insurance coverage, and the coverage of their tenants. A tenants homeowners insurance policy may not adequately cover incidents involving animals, especially if there are specific liabilities associated with them. It’s important to consult with a risk management professional to determine if additional coverage, such as animal liability insurance, is necessary to protect against any potential risks or damages.
Landlords Should Have and Enforce a Written Pet Policy
To maintain a safe and well-managed property, landlords should establish a comprehensive written pet policy that clearly outlines the rules and expectations regarding service animals and ESAs. This policy should include guidelines on behavior, waste disposal, leash requirements, and any other relevant regulations. Property owners should also communicate with tenants that dogs must be restricted or kept separate during any planned maintenance with internal and external contractors. By enforcing this policy consistently, landlords can ensure that all tenants and their animals adhere to the established guidelines, minimizing potential conflicts and hazards.
Require Verifiable Up-to-Date Shot Records
To protect the health and safety of all residents, landlords should require tenants with service animals or ESAs to provide verifiable up-to-date shot records for their animals. Verifying shot records ensures that the animals are properly vaccinated, reducing the risk of diseases spreading within the property.
Enforce an Active Leash Policy for Service and Emotional Support Animals
Landlords should enforce an active leash policy for service animals and ESAs (unless a leash or other restraint interferes with the service animal’s work or the person’s disability prevents using such devices). Requiring all animals to be leashed when in common areas helps maintain control and prevents them from approaching other tenants or causing damage to the property. This policy ensures the well-being of all residents and demonstrates a proactive approach to risk management. By consistently enforcing the leash policy, landlords can mitigate the chances of accidents, conflicts, or disturbances, creating a secure and comfortable living environment for everyone.
Prohibit Dogs with Known Prior Aggression
Landlords should establish a strict policy prohibiting dogs with known prior aggression. This policy can help prevent potential harm to tenants or their animals, as well as minimize the risk of property damage. Landlords should require tenants to disclose any history of aggression or provide references to verify the dog’s behavior.
Speak with a Risk Management Professional / Insurance Broker to Learn More About Coverage Limits for Service and Emotional Support Animals
Given the complexities and potential liabilities associated with service animals and ESAs, landlords should consult with an experienced risk management professional who can provide guidance regarding coverage limits, exclusions, and other insurance considerations. Taking proactive steps and staying informed can help landlords navigate the complex landscape of commercial property liability while providing a safe and inclusive housing environment for all tenants.
By implementing the risk mitigation and reduction strategies outlined in this guide, landlords can create a safer environment while protecting themselves from potential liabilities. It is essential to review your current insurance coverage, establish clear pet policies, and communicate expectations to tenants. By taking these measures and seeking expert advice, landlords can ensure compliance, reduce risks, and provide a welcoming home for all tenants. Need help assessing your risk? At Odell Studner, we help property owners maintain compliance while protecting their investments. Contact us to set up a risk analysis consultation with one of our risk management professionals today.