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Service Animals, Emotional Support Animals, and the FHA

There is much confusion and frustration surrounding housing laws, Service Animals, and Emotional Support Animals. To make it clear, an Emotional Support animal is not a Service Animal. A Service Animal is an animal trained to assist people with disabilities, whereas an Emotional Service Animal (hereinafter referred to as "ESA") provides therapeutic or emotional benefits to their owners through companionship. ESAs have no specific training, are not allowed in all public spaces like Service Animals, and are not considered Service Animals under the Americans with Disabilities Act (ADA).

While ESAs are not allowed everywhere in public, under the Fair Housing Act (FHA), landlords are required to make reasonable accommodations to allow pets who serve as assistance animals (which includes ESAs). It's no surprise that people have abused this law over the years and there are several websites out there where you can "register" your ESA and obtain a doctor's note for your ESA. It's important to note that there is no official registration database for ESAs.

The FHA makes it clear that landlords cannot discriminate against tenants, but on January 28, 2020, HUD released a notice providing guidance on FHA and animals as a reasonable accommodation. In its guidance, HUD explained, “Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.” The guidance also clarifies that housing providers may not charge a deposit or fee for assistance animals. They may, however, charge tenants for damage caused by such assistance animals or deduct said damages from typical security deposits. The HUD guidance also acknowledged that there are many websites that sell “certificates” or “registrations,” and stated that “such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

It is unfortunate that in recent years many people have abused FHA, but guidance such as this one as well as state laws that are being implemented will help deter fraud in the system.

Please be aware that this post is not meant as legal advice and if you have any questions you should seek the advice of counsel.

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