Legal Update: New Laws Regarding Service & Emotional Support Animals Take 5
With Joel Maxson
Trt: 5 min 45 sec
Video Description



Joel Maxson directly addresses camera:  If you work with rental properties, you’ve likely encountered a landlord with a strict “no pets” policy. And, how many times have you dealt with a landlord who didn’t understand that assistance animals are exempt from “no pets” rules, since, say it with me, assistance animals are NOT pets. This may put you in a tough spot when passionate voices on both sides of this issue start raising their voices. Hi, I’m Joel Maxson, Associate General Counsel for Florida Realtors. Let’s take 5 minutes to go over three common questions we get from Realtors about handicapped individuals and their assistance animals.  
 
But first, let’s look at some new and revised laws that became effective July 1, 2020 from the perspective of a person claiming the need for an emotional support animal, or ESA. This new law provides that an ESA certificate received through a website is not, by itself, enough to prove an animal is an assistance animal. There are still many ways for a person to establish a need for an ESA, including through healthcare practitioners, telehealth providers, or government agencies.  The new law makes it a second-degree misdemeanor to misrepresent facts when seeking proof of the need for an ESA, whether verbally or in writing. Finally, if someone claims more than one ESA, they will need documentation for each animal. These new laws should make it difficult for people who want to circumvent no-pet policies and claim a handicap they don’t have.

This brings us to the first question we’re often asked: How do I screen an individual who claims to need an assistance animal? As a starting point, if a handicap is obvious by observing the person, a housing provider may not ask for additional proof. What if the handicap isn’t readily apparent? A handicap is defined as: One: A physical or mental impairment which substantially limits one or more of such person’s major life activities. Two: A record of having such an impairment. Or three: Being regarded as having such an impairment. It would help if there was a single, uniform form that would acknowledge an individual has a handicap that meets this definition. However, there isn’t such a form. The proof is usually established in a brief note from a medical professional, although it could also come from a professional service provider such as a social service worker. Once a handicap is established, the housing provider is obligated to make reasonable accommodation, which typically means the prospective tenant is entitled to a waiver of all pet restrictions, rules and fees. In other words, the animal is coming in, with no pet deposit collected, even if the housing provider doesn’t want it. 

Question number two: Are there circumstances when a housing provider is justified in denying a request to allow an assistance animal? If an assistance animal would cause an undue burden, the law allows the request to be denied. The housing provider should keep in mind that this doesn’t mean there will be NO burden; it must be an UNDUE burden, which may not be as easy to establish as you may think. Let’s look at an example of undue burden that the U.S. Department of Housing and Urban Development, or HUD, published in a June 12, 2006 memo. This memo describes a situation where a housing provider’s insurance carrier had a problem with a specific breed of assistance animal. As a result, the insurance carrier would cancel, substantially increase the policy premium or adversely change the terms. HUD wrote that this situation MIGHT be an undue burden, but they would need to analyze specific facts in more detail. For example, a HUD investigator might consider whether comparable insurance is available from another provider that doesn’t penalize the insured based on the assistance animal breed. The investigator may also interview the insurance provider to confirm that the cost increase is substantial, and not a burden for the owner to carry. As you can see, the housing provider better do some homework before claiming an assistance animal request would create an undue burden. 

Another valid reason to deny an assistance animal request is if a specific animal poses a threat to people or property that cannot be reduced or eliminated by reasonable accommodation. But the housing provider would have to prove that this particular animal acted violently. 

Question number three: Are there blanket rules that apply across the board, such as “animals above this many pounds can’t be assistance animals.” The short answer is no. To avoid illegal discrimination, a housing provider must make reasonable accommodations in rules, policies, practices, or services. When you see the word “reasonable” in a legal context, it almost always signals that disputes will be resolved on a case-by-case basis. Therefore, it would ultimately be a judge, jury, or other officials, to decide whether illegal discrimination has occurred after hearing the whole story from both sides.

When you combine the broad definition of handicap, the narrow list of reasons to deny an assistance animal, and the unpredictability of case-by-case analysis, you can see why we always encourage members to take a conservative approach when it comes to assistance animals. 

As a practical takeaway, remember to facilitate communication between the prospect and the property owner or community association, while leaving any screening decisions to the owner or association. This is especially true if they want to scrutinize or deny a request. Also, an assistance animal request should not trigger a firm and unwavering “no” response. Instead, keep an open dialogue between the prospect and the housing provider to determine how the housing provider can make a reasonable accommodation. One HUD representative heavily underscored this point while addressing Realtors at a national convention, so it’s wise to heed his advice and avoid burning bridges between housing providers and prospects. 

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As always, if any members would like to talk about assistance animals in more depth, Florida Realtors Legal Hotline attorneys are just a phone call away.