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Q&A Regarding Emotional Support Animals

Q. A tenant got an emotional support dog—but it’s a 200+ pound English Mastiff. She lives in a junior one-bedroom apartment in an 8-unit building inhabited by mostly families. I’m concerned that the space is too small for the dog, and I have no idea if the dog has been trained to be around small children. Is there anything I can do to ensure the safety of my other tenants?

A. The Fair Housing Act (FHA) and the Americans with Disabilities Act make it unlawful for a landlord to refuse a reasonable accommodation to a tenant with a disability who requests to keep a comfort or emotion support animal (ESA), even when the landlord’s policy explicitly prohibits pets.

A reasonable accommodation is a change in rules, policies, practices, or services so that a person with a disability will have an opportunity to use and enjoy a dwelling unit or common space. A landlord is not required to provide an unreasonable accommodation for a disability. An unreasonable accommodation is one that causes an undue financial or administrative burden or poses a direct threat to health and safety of others. Even if a request is unreasonable, a landlord should discuss alternative reasonable solutions and accommodations.

An ESA is an animal that helps people with mental disabilities, such as anxiety, depression, autism, or post-traumatic stress. For an ESA there are no species or breed restrictions. In other words, an ESA could be a cat, dog, lizard, bird, snake, or 200-pound English Mastiff, so long as that breed of animal is lawfully permitted in the City and State. An ESA does not need to have any special or formal training nor perform any physical task.

However, this does not mean that a tenant can bring a violent animal into the rental unit or one that creates a nuisance. The tenant is obligated to ensure that the ESA does not disturb other or damages the rental unit.

You could request that your tenant sign an ESA Agreement as an amendment to the lease. This should outline additional terms, such as 1) tenant agrees to be liable for any damage caused to the property not covered by the initial deposit, 2) tenant agrees to be liable for any injury to a person or damage to the property caused by the ESA, 3) tenant agrees to keep their animal from being a nuisance and will remedy immediately any complaints to the best of their ability, and 4) tenant agrees to acquire licensing and proof of proper vaccinations.

This Q&A was featured in SFAA's April 2019 Magazine.

© 2019 by Fried & Williams LLP. All Rights Reserved. The information contained in this article is general in nature. For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time.

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