Emotional Support Animals in Rental Properties

Most people are familiar with service animals—generally exemplified by a service dog assisting an individual with a disability. Only service dogs, miniature horses, and monkeys are recognized as service animals under the Americans with Disabilities Act (ADA). Wisconsin law prohibits a public place to deny entrance to a person with a disability accompanied by a service animal. Additionally, under Wisconsin housing law, if an individual’s vision, hearing, or mobility is impaired, it is discrimination for a landlord to refuse to rent or sell housing to the individual, evict the individual, require extra compensation as a condition of continued residence, or harass the individual because she keeps a service animal that is specially trained to lead or assist her.

Yet, service animals are not the only kind of animal that can assist an individual with a disability. In fact, there are three types of assistance animals: service animals, therapy animals, and emotional support animals. Emotional support animals are frequent subjects of angst and confusion amongst landlords.

An emotional support animal is not a pet but rather a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability, such as depression or post traumatic stress disorder. Unlike a service animal, an emotional support animal is not specifically trained to perform tasks. An emotional support animal’s primary purpose is to provide companionship.

An individual qualifies for an emotional support animal if first, she meets the federal definition of disability—any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. Second, the individual must have a note from a physician or other professional indicating that the person has a disability and that the emotional support animal provides a benefit to the individual with the disability.

Service animals, like seeing-eye dogs and guide dogs are generally accepted and recognized; however, emotional support animals are met with some resistance. Just this year, a Wisconsin woman was removed from a McDonalds because she brought a baby kangaroo to the restaurant. When confronted by police, the woman explained that the kangaroo was an emotional support animal and provided a doctor’s note for the kangaroo. Regardless, because emotional support animals are prohibited from public places, the woman and kangaroo were asked to leave.

While emotional support animals are not allowed in public, the rules are different for property managers and landlords. The federal Fair Housing Act (FHA) and the ADA allow qualified individuals to keep emotional support animals at a rental property even though a landlord enforces a no pet policy. A landlord can charge a security deposit and seek money for damages caused by the animal, but the landlord cannot require the tenant pay pet fees.

A tenant must submit a request to keep an emotional support animal to the landlord or building manager. The request should state that the tenant has a disability, the animal’s function to help or mitigate the disability’s symptoms, and a doctor’s note or prescription verifying the need for the emotional support animal. The tenant is not required to provide the specifics of her disability.

Emotional support animals are considered reasonable accommodations, and as long as the accommodation does not create an undue burden for the landlord, the tenant can keep the animal. Breed and weight restrictions do not apply to emotional support or service animals. One such undue burden, however, is an allergy exception. In owner-occupied housing, if the owner or owner’s family can show evidence of an allergy to the specific type of animal, the owner can refuse to rent to the individual. Also, in situations where the allergy causes respiratory distress for tenants, the allergic tenant may request an accommodation, such as keeping the animal and the allergic person separate. On the other hand, a fear or a minor allergy to other dogs is not a disability, and the landlord does not need to “accommodate” these tenants. However, if the animal creates a direct threat to the safety of others, the landlord is not required to accept the animal. Nonetheless, if an accommodation is reasonable, and the landlord does not accept the request, the tenant can file a discrimination complaint.

Service animals are not pets, and normal pet policies do not apply. If a tenant requests to have a service animal of any kind in the rental property, especially an emotional support animal, ensure that the individual has a disability and seek a note from a medical professional indicating that the animal helps or mitigates the disability. Unfortunately, for many landlords, medical professionals seem all too willing to prescribe emotional support animals for a host of reasons, which makes it very difficult for landlords to refuse the accommodation without fear of repercussions.

Written By:
Law Firm of Conway, Olejniczak & Jerry, S.C.