If you have a service or an emotional support animal, you may face unique challenges when finding a new apartment. During your rental search, you will benefit from understanding federal law regarding these animals. In some circumstances, a landlord must accommodate your assistance animal. In other circumstances, however, you can be denied an apartment or forced to limit where your animal goes.
What is a service animal?
The Fair Housing Act (FHA) protects your right to have an assistance animal in your apartment no matter the landlord’s policy on animals.
Assistance animals encompass:
- Service animals, which are dogs trained for a specific person;
- Support or companion animals, which can be any type of animal that provides physical or emotional support; and
- Any other animal that works, aids, or performs tasks for the benefit of a person with a disability, or provides emotional support, alleviating a symptom or effect of an individual’s disability.
The Americans with Disabilities Act (ADA) also protects your right to have your service dog and emotional support animal live with you despite a “no pets” policy. Under both the FHA and ADA, assistance animals are not pets.
According to the Tenant Resource Center, a nonprofit organization facilitating good relations between landlords and tenants in Wisconsin, “A service animal or emotional support animal should not be considered a ‘pet.’ They should be treated, from the landlord's perspective, like a piece of medical equipment.” While laws will vary by state, federal protections favor tenants in this case.
Can you have your service animal in your apartment?
To determine if you have a right to move into an apartment with your assistance animal despite a building’s “no pets” policy, you need to figure out if your situation is covered by the FHA.
The FHA applies to almost all types of housing, including units for sale and rent. The exceptions include landlord-lived-in buildings with four or fewer units, and private individuals who do not own more than three single-family homes and do not use brokers or agents to rent out a home or room.
Once you are confident you are covered by the FHA, there are more factors to consider. The U.S. Department of Housing and Urban Development (HUD) published two questions that help determine your right to live with an assistance animal versus when your landlord can say no:
- Do you have a diagnosed disability that impacts major life activities? In regard to a disability, you must have documentation of the condition. Disabilities do not have to be physical. They include mental health conditions such as depression, anxiety, and post-traumatic stress disorder.
- Do you have a disability-related need for the animal and will the animal assist, perform tasks, or perform services for you? Do you have a service dog that is specifically trained to complete certain tasks or actions? Do you have an emotional support animal, which is documented by a physician or mental health professional? Your animal must perform some work, assistance, or task that benefits you in relation to your disability. For an emotional support animal, it must alleviate a symptom of your condition.
If you cannot prove you have a disability or that a service dog or emotional support animal assists you in some way, then you may simply have a pet, which is not protected by the FHA or ADA. Often, proving you have a disability and that your animal is related to your disability requires a letter from your physician or therapist.
If you and your assistance animal are protected by federal law, then the landlord must provide a reasonable accommodation. In most circumstances, this means the landlord must allow you to live with the animal in your rental unit despite the general “no pets” policy.
On a related note, you are not liable for paying pet-related fees because your assistance animal is not a pet. However, the landlord has the right to charge an appropriate security deposit for fear the animal will cause property damage.
Restrictions on service animals
Your landlord can deny your right to live with your assistance animal if providing you with a reasonable accommodation would create an undue burden. For instance, a service animal can technically be a trained miniature horse. A landlord may prove it would create an undue burden for them to provide you with some way to get your small horse to a third-floor walkup.
Service dogs are allowed in all public accommodations. If you can go somewhere on the rental property, your service animal must be allowed there too. However, if you have a companion animal, not a service dog, you may be restricted from bringing it into certain shared spaces, like a pool or business center. A landlord’s restrictions on where a companion animal can go must be reasonable.
Additionally, if your assistance animal becomes a nuisance on the property, such as if it makes a great deal of noise at all hours of the night or attacks another resident, then your landlord can take legal action to remove the assistance animal or evict you.
“Your landlord may not charge you a pet fee for an ESA, but any landlord may evict a tenant whose dog—even an ESA—misbehaves, damages property or creates a risk to other tenants,” writes McAdams Law, a New York based landlord tenant firm. “While the ADA limits the places where an ESA may be admitted compared to those of highly trained service animals, the law is on your side when it comes to housing. If your landlord refuses to rent to you, charges you a pet fee or threatens eviction because of your emotional support animal, you may wish to obtain legal advice to protect your rights.”
A qualified landlord tenant attorney in your state can help you navigate your rights to living with your assistance animal. If you are facing eviction or feel you were denied housing on the basis of your disability, contact a lawyer right away.