Landlord Trouble Running “No Pets” Ads When Evaluating Tenants With Disabilities

A landlord, who advertises “no pets” can run into trouble if they refuse to rent to tenants with disabilities who rely upon a “service animal” or an “emotional support” dog. Everyone knows about service animals like seeing eye dogs. “Emotional support” dogs can come as a surprise.

An emotional support animal is one that is not trained to perform specific behaviors to assist a tenants with disabilities. It is not a service dog, but alleviates a psychological disability by its presence with the owner. Emotional support animals need not be specially trained. They can be ordinary “pet” animals, and gain their legal status by a prescription from a mental health provider. If you go on line you will find a number of sites that will charge you a small amount of money, give you a quick on-line quiz and send you certificate that your pet is an emotional support animal necessary for you mental health. Whether these on-line certifications would hold up in court is untested. While they do not have the same public access rights as service animals, emotional support dogs are protected in housing by the Fair Housing Act (the FHA) and in air travel by the Air Carrier Access Act.

The Americans with Disabilities Act (the ADA) does not apply to leases of private residences, but the Fair Housing Act (the FHA) provides service dog protections. The FHA does not apply to owner-occupied buildings of four units or fewer or to single-family homes leased by the owner without a broker. The FHA extends to “emotional support animals” as well as service animals, the ADA does not. Finally, the FHA allows housing providers to require evidence of the tenant’s disability and need for an assistance animal unless it is “readily apparent” (e.g. a seeing eye dog for a blind tenant). A tenant with a qualifying service or emotional support animal may not be denied housing on that basis and must be exempted from “no pet” policies, breed and size restrictions, pet deposit, pet rent surcharges, etc.

As you can see this area is quite complex and holds the possibility of many traps for the unwary. Any landlord faced with a prospective tenant with an emotional support animal should seek the services of an attorney and proceed with caution. Landlords who refuse to rent to a person with such an animal could find themselves at the end of a lawsuit brought by the Massachusetts Commission Against Discrimination.

The information in this posting is not a substitute for in depth legal advice provided by an attorney who has had the opportunity to review all of the facts for your situation. Laws change over time and are different from state to state.