U.S. Department of Housing Issues New 2020 Rules for Emotional Support Animals

On January 28^th, 2020, the U.S. Department of Housing and Urban Development (HUD) issued new guidance regarding Emotional Support Animals (ESAs) in housing. This is a major development for owners of ESAs and the first comprehensive update to ESA housing rules since HUD last issued guidance in 2013.

12 Important Facts ESA Owners Need to Know

All owners of ESAs or prospective owners of ESAs should become familiar with these new rules which are now in effect and replace the 2013 rules. This article addresses 12 important details about the new rules and is intended to help tenants understand their current rights as ESA owners.

1. HUD confirms that landlords cannot impose breed/weight restrictions, or charge fees and deposits for ESAs
2. Landlords should respond to ESA requests promptly, and at least within 10 days.
3. Landlords cannot require healthcare professionals to use a specific form
4. Landlords cannot request sensitive details about the tenant’s condition
5. ESA requests can be made orally or in writing
6. Tenants can make an ESA request before or after acquiring their ESA
7. Dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish and turtles can be ESAs.
8. Landlords must engage in interactive dialogue with tenants about ESA requests
9. HOAs and Co-Ops are subject to ESA rules
10. Tenants can use the help of third-parties to care for their ESAs
11. Registrations and licenses are NOT legitimate ways to qualify an ESA
12. ESA letters can come from online health professionals

Background

First, some quick background, especially for those new to ESA housing laws. The Fair Housing Act is a federal law that makes it illegal for housing providers to refuse a reasonable accommodation that a person with a disability needs to have equal opportunity to enjoy and use a dwelling. Many individuals with mental health-related disabilities, including depression, anxiety, PTSD and phobias, have Emotional Support Animals that provide comfort and relief from symptoms of their condition. In order to qualify an animal companion as an ESA, the owner must obtain a recommendation letter from a licensed health care professional (LHCP).

Tenants with ESA letters have certain rights under the Fair Housing Act:

• ESAs are permitted in almost every type of housing, even those with no-pets policies.
• ESAs are not considered normal pets under Fair Housing rules, and building policies that apply to pets do not apply to Emotional Support Animals. For example, landlords are not permitted to charge fees and deposits in connection with ESAs.
• Landlords also cannot impose breed or weight restrictions on ESAs.

The Department of Housing sets best practice for how ESA accommodations are handled. HUD notes that it was receiving an increasing number of complaints regarding how ESA accommodations should be handled. Tenants complained about landlords unfairly denying their requests, and landlords complained about confusion regarding how to properly handle tenant requests. In response to these complaints and uncertainty regarding ESA procedures, HUD has released brand new guidance to clarify the requirements for ESA accommodation.

For current ESA owners worried about whether their landlord may try to take away their ESA under the new rules, HUD makes clear that landlords cannot reassess requests for ESA accommodation that were granted prior to the issuance of the new guidance. Any ESA requests submitted to landlords after January 28, 2020 however will be subject to the new HUD guidance. Current ESA owners should still become familiar with the new ESA rules that apply to them.

The good news for current and prospective ESA owners is that the new guidance provides some additional protections for ESAs and much needed clarity for landlords and tenants. HUD’s new guidance also answers some questions many ESA owners commonly asked which did not previously have clear answers. Here are 12 facts every ESA owner should be aware of regarding the latest rules.

1. HUD confirms existing rights for ESA owners: No breed/weight restrictions, and no fees and deposits are allowed

In its latest guidance, HUD once again confirms that normal rules that apply to pets do not apply to ESAs. This means that landlords cannot place limitations on the size or breed of a dog used as an Emotional Support Animal. Landlords can only deny ESAs in limited circumstances, such as if there are specific issues with the ESA’s actual conduct which poses a direct threat to others, or if accommodation of the ESA would create a fundamental alteration to the landlord’s premises.

Under HUD guidance, landlords were also prohibited from charging fees and deposits in connection with ESAs. Even if a tenant’s building charged a monthly fee or deposit for regular pets, ESA owners are exempt from having to pay such costs. HUD has affirmed in its latest guidance that fees and deposits are impermissible, and further clarified that landlords also cannot charge an application fee in connection with a tenant’s request for accommodation of their ESA.

A landlord can, however, charge a tenant for damage their Emotional Support Animal causes if it is the landlord’s customary practice to charge for damage caused by tenants. Landlords often complained about not being able to charge fees and deposits to cover potential damage that an ESA may cause, but HUD confirms that ESA owners are responsible for the actions of their ESAs, and that landlords can also deduct costs associated with damage caused by an ESA from the standard security deposit charged to all tenants.

2. Landlords should respond to ESA requests within 10 days

In previous guidance, HUD stated that landlords could not “unreasonably delay” responding to ESA requests. This lead to confusion about the exact time frame a landlord had to respond. Most landlords respond within a matter of days, but some prolong the process and tenants were uncertain about what their rights were if the landlord dragged their feet. HUD has thankfully clarified in its latest guidance that housing providers should respond “promptly, generally within 10 days of receiving documentation.” This gives some much needed certainty to ESA owners who are anxiously waiting for their landlord to make a decision.

3. Landlords cannot require the health care professional to use a specific form or make unreasonable demands of them

One common complication that tenants seeking ESA accommodation run into is that landlords will insist that additional forms be completed by the health care professional in addition to the ESA letter they have issued. Landlords also sometimes impose other demands on the licensed professional, such as making sworn statements.

HUD in its guidance has stated that landlords cannot require a health care professional to use a specific form, provide notarized documents, make statements under penalty of perjury, or provide an individual’s diagnosis or other detailed information about a person’s mental impairments.

This is good news for tenants with landlords that require additional forms which demand invasive information about the tenant. Tenants may still choose to have their health care professional complete landlord forms that are merely confirmatory or that do not demand sensitive details about the tenant’s condition. Tenants are now protected however if their landlord oversteps their bounds and demand that the health care professional complete a form that is beyond the scope of Fair Housing rules.

HUD notes that it relies on licensed health care professionals to provide accurate information to the best of their personal knowledge, consistent with their professional obligations. Just as HUD defers to the determinations of licensed professionals, landlords should also rely on a licensed health care professional’s determination set forth in a compliant ESA letter without making additional demands for sensitive information, or imposing additional requirements like sworn statements.

4. Landlords cannot request details about the tenant’s condition

Some landlords during the ESA accommodation process will demand to know more details about the tenant’s condition and why they need a particular ESA. HUD has emphasized once again that housing providers cannot request specific details regarding the tenant’s condition. Landlords cannot request access to medical records or insist on a medical examination. HUD states in its guidance that landlords are not entitled to know the tenant’s diagnosis, and that landlords cannot require the disclosure of details about the severity of the tenant’s disability.

5. HUD has clarified how ESA requests should be submitted to landlords

Many ESA owners have questioned over the years how exactly they should submit their ESA letter to their landlord. HUD has clarified that tenants can make a request for accommodation of their ESA orally or in writing. The request can also be made directly by the ESA owner, or by someone else on behalf of the owner, such as a person legally residing in the unit with the ESA owner or a legal guardian or authorized representative. Tenants do not need to submit a written request or to use the words “reasonable accommodation,” “assistance animal,” or any other special words to request accommodation for their ESA.

It should be sufficient for a tenant to just let the landlord know they are requesting to live with their ESA and submit their ESA letter.

HUD does however encourage tenants to specify that they are requesting “reasonable accommodation” for an Emotional Support Animal in order to avoid any confusion regarding their request. HUD also recommends that tenants keep a copy of their accommodation request and any supporting documentation. These sensible tips from HUD will come in handy in case there is a dispute later with the landlord about whether an ESA accommodation request was ever made.

6. Residents can make an ESA request before or after acquiring the ESA

Another common question that prospective ESA owners ask is when they need to submit their ESA request to the landlord, and whether they can make a request if their ESA is already living with them. HUD has clarified that tenants can request ESA accommodation either before or after acquiring their Emotional Support Animal.

HUD states in its guidance that a person with a disability can make a reasonable accommodation request at any time, and the landlord must consider the request even if the tenant made the request after bringing the ESA into their home.

We always recommend that ESA owners be fully transparent with their landlords about their ESA situation and to let their landlords know as soon as possible if they are obtaining an ESA. Sometimes landlords find out that a tenant has been keeping an ESA in secret and threaten to kick out the ESA or terminate the tenant’s lease. HUD has stated that in these situations, the tenant can still submit an ESA request, but the timing may create the impression that the tenant acted in bad faith (i.e., the tenant obtained an ESA solely to skirt pet rules). That means a couple of things: First, if you think you may qualify for an ESA, you should seek help from a licensed professional as soon as possible, and not only after you bring an animal home and your landlord discovers it. Secondly, you should always try, when possible, to inform the landlord prior to the ESA moving in. That is not always feasible – for example, if you already live with a pet and then that pet later qualifies as an ESA.

The bottom line is that you should never tried to hide an ESA from a landlord, and ESA owners should submit a request for ESA accommodation as soon as they qualify for an ESA letter. You can also submit the request to your landlord prior to actually adopting the animal that will become your ESA.

7. HUD clarifies what type of animals can qualify as ESAs

Emotional Support Animals are most commonly dogs and cats, but many types of animals can serve as wonderful companions that provide emotional support. HUD in its guidance clarifies that any “small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes” can be an ESA. Dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish and turtles are given as specific examples of animals that fall into this category.

This does not mean that other animals cannot serve as ESAs. The HUD notes that other “unique” animals, such as reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals will face a higher bar in order for landlords to accept them. HUD notes that owners of such “unique” animals will face the substantial burden of demonstrating the need for such animal, and should submit additional documentation from their health care professional specifically confirming the need for the animal. In these cases, the health professional will have to describe the unique circumstances that justify the client’s need for the particular animal.

8. Housing providers must engage in dialogue with their tenants about ESA accommodation requests, and also explore other options if the request is denied

Sometimes, tenants face an unfortunate situation where their landlord refuses to consider their request for an ESA, denies an ESA without giving the reasons why, or just refuse to discuss the matter at all.  HUD has stated in its new rules that before denying a reasonable accommodation request due to a lack of information about a tenant’s disability or their ESA, the housing provider should “engage in a good-faith dialogue” with the tenant referred to as the “interactive process.”

Landlords have to give the tenant a “reasonable opportunity” to provide documentation regarding their ESA before rejecting the tenant’s request.

The landlord should let the tenant know why they believe the tenant’s ESA request is insufficient, and engage in a good faith dialogue to remedy the situation. If the landlord is refusing reasonable accommodation for an ESA because they have determined the particular ESA poses a direct threat, the landlord must also have considered whether there may be actions to eliminate or reduce that threat to an acceptable level through actions the tenant takes to maintain or control their ESA. HUD gives as an example the tenant possibly keeping the potentially threatening ESA in a secure enclosure.

9. HOAs and Co-Ops are subject to ESA rules

It was generally understood that HOAs and co-ops were subject to the same Fair Housing rules as other types of housing. However, tenants would sometimes face challenges dealing with difficult HOAs and co-ops.

For the avoidance of doubt, HUD has stated that a reasonable accommodation for an ESA may include a reasonable accommodation to a land use and zoning law, homeowners association rule or a co-op rule.

10. Tenants are responsible for the well-being of their ESAs, and can also utilize others to help care for the ESA

It probably goes without saying, but an ESA owner is always responsible for the wellbeing and safety of their ESA, as well as for any consequences that stem from their ESA’s actions. HUD reminds ESA owners in its updated guidance that tenants with ESAs are responsible for feeding, maintaining, providing veterinary care for, and controlling their Emotional Support Animal.

HUD also clarifies that the tenant can do this on their own, with the help of family and friends, or with other third parties like volunteers or service providers.

This guidance is helpful for ESA owners who have had landlords suggest that the ESA must be in their complete control at all times. HUD recognizes that ESA owners, like most pet owners, will utilize third-parties from time to time to care for their animal companion.

11. Registrations and licenses are NOT legitimate ways to qualify an ESA

We have written many articles and cautioned numerous people over the years that the only way to legitimately qualify an animal companion as an ESA is to obtain an ESA letter from a licensed health professional. Websites that sell registrations and licenses for a fee are not providing effective ESA services.

ESAs do not need a registration or license, and these items also do not confer any legal rights on an animal or confirm the owner has a disability.

 HUD makes clear in its guidance that these types of documents purchased online are insufficient to demonstrate to landlords that a tenant has a disability that requires an ESA. We applaud HUD’s efforts to crack down on websites that sell dubious ESA services and ineffective products. We also warn clients against companies that sell ESA letters without the involvement of a licensed professional – these types of letters are also invalid.

HUD recommends that the health care professional sign and date any documentation provided and provide contact information and professional licensing information in the ESA letter. We have always connected clients to licensed professionals who provide ESA letters on their signed letterhead, with their contact information and professional licensing information included. We are glad to see HUD has clarified that ESA letters should always meet that minimum standard.

12. HUD clarifies that ESA letters can come from online therapists

We routinely emphasize to prospective ESA owners that ESA letters must come from a licensed health care professional, and HUD again confirms that requirement in its latest guidance. HUD specifically states that ESA documentation must come from a licensed health care professional. HUD has provided as examples of LHCPs the following professionals: psychologists, psychiatrists, optometrists, physicians, physician’s assistants, nurse practitioners, nurses, social workers and other mental health professionals. Landlords will sometimes insist that an ESA letter must come from a physician – that is untrue according to HUD’s guidance.

At ESA Doctors, clients are always connected to professionals that are licensed for their state. The licensed health care professionals that ESA Doctors work with make recommendations for ESAs based on their independent professional judgment.

HUD notes that legitimate licensed health care professionals can deliver ESA related services remotely, including over the internet.

This clarification from HUD is a major win for individuals who are not able to see a therapist in person. Many people, for financial or other reasons, are unable or unwilling to seek help in person, and online services provide an invaluable resources for this underserved population.

HUD’s Guidance Affirms the Importance of ESAs and the Need to Protect ESA Owners in the Home

In its recent guidance, HUD recognizes the crucial role that Emotional Support Animals can have in the lives of their owners. Some examples that HUD gives of how assistance animals help owners with mental illness include:

• Providing emotional support that alleviates at least one identified symptom or effect of a mental impairment
• Taking an action to calm a person with post-traumatic stress disorder (PTSD) during an anxiety attack
• Assisting the person in dealing with disability-related stress or pain;
• Assisting a person with mental illness to leave the isolation of home or to interact with others
• Enabling a person to deal with the symptoms or effects of major depression by providing a reason to live

If you are a current ESA owner or are seeking to qualify to become one, it is important to understand your rights under federal law when it comes to housing. HUD’s 2020 guidance provides much needed clarity on many ambiguities that existed when it came how ESA requests should be processed under Fair Housing rules. It is important to note that HUD has warned the public against ESA services that sell certifications, licenses and registrations. HUD emphasizes that legitimate ESA letters must come from a licensed health care professional.

If you believe you have a mental illness or are suffering from emotional distress and are interested in seeing if you may qualify for an ESA, we always recommend seeking the help of a qualified licensed health care professional. If you do not have a health care professional, are having trouble finding one, or do not have the ability to see a professional in person, we can help connect you to a health care professional licensed for your state that can help evaluate whether an Emotional Support Animal may be appropriate for you.

Below is a recap of the 12 important details regarding the updated Fair Housing rules

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