A Landlord’s Guide to Service Animals & Emotional Support Animals (ESAs) – 2024

California law regarding both service animals and emotional support animals is often very confusing.  In this post, we provide an overview of current regulations and how it potentially impacts your rental property.

Table of Contents

san diego pet laws and regulations

Introduction

As a San Diego landlord, understanding the nuances and legal requirements surrounding service animals and emotional support animals (ESAs) is crucial. This guide aims to clarify the distinction between these two types of assistance animals, provide an overview of the legal obligations of landlords, and guide you through handling tenant requests and related issues.

Navigating the complexities of service animal and ESA laws can be a challenge, particularly in California where the regulations may differ from federal laws. Landlords are strongly advised to consult with an attorney before taking any steps that may infringe on a tenant’s rights.

Let’s dive in!

Key Take-aways

  • Service animals and Emotional Support Animals (ESAs) are not considered pets under legal regulations, thus they are exempt from no-pet policies.
  • Landlords cannot charge additional fees, deposits, or rents for service animals or ESAs.
  • Reasonable accommodations for ESAs could include relaxation of weight or breed restrictions in a no-pet building.
  • Landlords can request proof of a tenant’s need for an ESA but not for a service animal.
  • Landlords have the right to enforce rules related to noise, disturbance, and damage, even for service animals or ESAs.

Understanding Service Animals

Definition of Service Animals

Service animals are animals that are individually trained to perform specific tasks for the benefit of a person with a disability. The term “service animal” is primarily used to refer to dogs, but it can also include miniature horses in some cases. These animals are trained to perform tasks such as guiding the blind, alerting the deaf, pulling a wheelchair, fetching items, pressing an elevator button, or even reminding a person to take their medication. It’s important to note that service animals are not considered pets but working animals that provide necessary assistance to individuals with disabilities.

The service animal must be under the handler’s control at all times. This means the animal should not pose a direct threat to the health or safety of others and must be well-behaved. The individual with the disability must have a letter from a licensed healthcare professional stating their need for a service animal. This rule, however, doesn’t apply to all situations. For instance, when the need for a service animal is obvious, such as when the dog is guiding an individual who is blind or pulling a person’s wheelchair, the individual should not be asked to provide such documentation.

Landlord’s Legal Obligations Regarding Service Animals

Landlords are legally obligated to make reasonable accommodations for tenants with disabilities, and this includes allowing service animals even in properties with a no-pets policy. Under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), denying a tenant’s request for a service animal can be construed as discrimination based on disability. However, landlords are entitled to ask for reliable documentation if the disability and the need for the service animal are not apparent.

The landlord cannot charge an extra fee or pet deposit for service animals. However, if the service animal causes damage to the property, the landlord can charge the tenant the cost of repairing the damage, just as they would for any other tenant-caused damage. Landlords are also not obligated to accommodate service animals that pose a direct threat to the health or safety of others, or that cause substantial physical damage to the property of others. In such cases, the landlord must engage in an interactive process with the tenant to determine if there are alternative accommodations that can be made.

Handling Service Animal Requests

When a tenant requests to have a service animal, there are specific steps landlords should follow to ensure compliance with laws and regulations.

    1. Review Request: A landlord should first review the request, ensuring it carries details about the tenant’s disability and the need for the service animal.
    2. Verify Disability: If the disability isn’t apparent, the landlord has the right to request supporting documents from a healthcare professional stating the tenant’s need for a service animal.
    3. Assess Reasonableness: The accommodation request should be reasonable and should not impose undue hardship or significant alteration to property rules. For instance, a tenant cannot request accommodation for a horse in an apartment due to limited space.
    4. Allow the Service Animal: If the request is valid and reasonable, the landlord should permit the service animal, even if there’s a no-pets policy in place. No extra fees or pet deposits can be charged.
    5. Prepare a Written Agreement: It’s advisable to formalize the accommodation in writing. This document should outline the responsibilities of the tenant, including the behavior of the service animal, potential damages, and others.
    6. Review and Update Property Policies: It can be beneficial to review and update existing property policies to ensure they align with legal obligations regarding service animals.

    Remember, it’s important to approach each request individually and with empathy. Not only is this the law, but it’s a crucial step in creating an inclusive and supportive environment for all tenants.

    Permitted and Prohibited Questions About Service Animals

    When fielding a tenant’s request to accommodate a service animal, a landlord may ask certain questions to verify the tenant’s need for the animal. However, this is subject to certain restrictions to protect the tenant’s privacy and prevent discrimination.

    Permitted Questions:
      1. Is this animal required because of a disability? This question helps verify if the animal is a service animal or merely a pet.
      2. What work or task has the animal been trained to perform? This question ensures the animal is indeed a service animal, trained to assist with a disability.

    Prohibited Questions:

      1. What is your disability? Landlords are not permitted to ask about the specifics of a tenant’s disability.
      2. Can you demonstrate the animal performing the task? It is against a tenant’s rights to be asked to demonstrate the service animal performing its task.
      3. Do you have any medical records or proof of your disability? Such questions are intrusive and a clear violation of privacy rights.
      4. Can you provide a certification of the animal’s training? Service animals are not required to be certified, and as such, this question is inappropriate.

    1. Ensuring you are informed about the permitted and prohibited questions will help you maintain a respectful and legally compliant approach to handling such requests.

    Circumstances Under Which a Landlord Can Deny a Service Animal

    While landlords are generally required to accommodate service animals, there are certain situations wherein they can legally deny such a request.

      1. Unreasonable Accommodation: If the accommodation is deemed unreasonable or causes undue hardship to the landlord, he or she may deny the request. For instance, accommodating a large animal in a small apartment could significantly alter the nature of the housing arrangement.
      2. Direct Threat to Others: If the service animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to other policies, practices, or procedures, the landlord may deny the accommodation.
      3. Significant Property Damage: If the service animal causes substantial physical damage to the property beyond reasonable wear and tear, the landlord has the right to deny the animal.
      4. Disability and Need for Service Animal Not Evident: If both the disability and the need for the service animal are not evident and the tenant fails to provide reliable documentation, the landlord can deny the request.

    Any decision to deny a service animal should be well-grounded for legitimate reasons and not based on assumptions or stereotypes. Landlords should consult with a lawyer before denying a service animal to mitigate any potential legal problems. It’s crucial to always consider the specific laws in your area, as they may vary from state to state.

    Understanding Emotional Support Animals (ESAs)

    Definition of Emotional Support Animals (ESAs)

    Emotional Support Animals (ESAs) are a category of animals that provide comfort and support in forms of affection and companionship for an individual suffering from various mental and emotional conditions. An ESA is not necessarily a service animal, but rather a pet that has been prescribed by a licensed mental health professional.

    The primary role of an ESA is to offer emotional support to their owners. They can assist with conditions such as anxiety, depression, certain phobias, and post-traumatic stress disorder. Unlike service animals, ESAs are not required to perform specific tasks for a disability. However, like service animals, they are protected under federal laws, allowing for certain exceptions in housing and travel scenarios where pets would typically not be allowed.

    Landlord’s Legal Obligations for ESAs

    Emotional Support Animals (ESAs) are protected under the Fair Housing Act (FHA) and the Rehabilitation Act of 1973, imposing certain obligations on landlords. Here are key responsibilities that every landlord should be aware of when it comes to ESAs:

      1. No Pet Policy Exemption: Landlords are required to make an exception to their ‘no pets’ policy for ESAs, as these animals are not considered pets under the law. Unlike service animals, ESAs do not need to be trained to perform a specific task and can be any type of animal.
      2. Waiver of Pet Fees: Landlords cannot charge tenants additional fees or pet deposits for their ESAs. Even though the animal might cause damage to the property, a landlord is not allowed to request extra fees upfront. If damage occurs, the landlord may still use the tenant’s security deposit to cover it.
      3. Reasonable Accommodation: Landlords are obligated to accommodate ESAs unless they pose an undue hardship or fundamentally alter the nature of the housing offered. For instance, keeping a large animal in a small apartment might be unreasonable.
      4. Verification of ESA Status: Landlords have the right to request a letter from a licensed mental health professional confirming that the tenant requires the ESA for their disability. However, they are not allowed to request specific medical records or details about the tenant’s condition.

    Each landlord should ensure they fully understand their legal responsibilities regarding ESAs to maintain a fair and supportive environment for all tenants. It’s crucial to balance the needs of the tenant with an ESA against the rights and comfort of all tenants. As always, when in doubt, consult with a legal professional to ensure compliance with all legal obligations.

    Handling ESA Requests

    When handling requests concerning Emotional Support Animals (ESAs), a landlord should follow a structured approach to ensure compliance with the law and respect for tenant’s rights. Below are some key steps you should consider:

      1. Confirmation of ESA Status: If a tenant approaches you with an ESA request, your first step should be to confirm the status of the animal. You are entitled to request a letter from a licensed mental health professional attesting to the tenant’s need for an ESA due to their disability.
      2. Assess the Reasonableness: Next, evaluate the reasonableness of the request. If the ESA is a large animal in a small apartment or a breed with a reputation for aggressiveness, determine whether accommodating the ESA would impose an undue hardship or fundamentally alter the nature of your property.
      3. Notification: Once you’ve made your decision, communicate it to the tenant promptly and professionally. If you have decided to deny the request, ensure your reasons are legitimate and well-documented. Consult with a legal professional to avoid potential litigation.
      4. Documentation: Keep thorough and organized records of all ESA requests and their outcomes. This documentation will be invaluable in the event of any legal challenges.
      5. Respect and Sensitivity: Finally, always be respectful and sensitive when handling ESA requests. Understand that these animals provide necessary support for individuals with mental and emotional health conditions. Your knowledgeable and compassionate handling of these requests will contribute greatly to your reputation as a fair and empathetic landlord.

    Following these steps will aid you in managing ESA requests effectively and legally. Remember, when in doubt, consult a legal professional to ensure you’re following the correct protocols.

    Permitted and Prohibited Questions Regarding ESAs

    When approached with an ESA request, landlords are allowed to ask certain questions for verification, while others are strictly prohibited under the Fair Housing Act. Understanding this difference can help avoid potential legal complications.

    Permitted Questions:

    Landlords can ask the following questions:

      1. Verification of ESA Status: Request a letter from a licensed mental health professional confirming that the tenant requires the ESA for their disability. But remember, this can only be asked if the need for an ESA is not obvious.
      2. Assess the ESA: You can ask about the type of animal. However, note that there are no restrictions in terms of breed or size for ESAs.
    Prohibited Questions:

    On the other hand, landlords should refrain from asking the following:

      1. Specific Disability Details: Landlords should not inquire about the tenant’s specific disability or medical history.
      2. Ask for ESA Training Evidence: Unlike service animals, ESAs are not required to be trained. So, landlords cannot ask tenants for training certificates or proof.
      3. Request for Medical Records or Detailed Medical Information: This is considered a violation of privacy and is strictly prohibited.
      4. Inquire About the ESA’s Role: You should not ask questions about how the ESA assists the tenant as ESAs are not required to perform specific tasks.

    By understanding what can and cannot be asked, landlords can navigate the ESA accommodation request process more effectively, while ensuring they remain within the bounds of the law. Always remember to respect the privacy and rights of your tenants when dealing with ESA requests.

     

    When Can a Landlord Deny an ESA?

    A landlord can legally deny an Emotional Support Animal under certain circumstances. However, these instances are limited and specific, designed to protect the rights and comfort of all parties involved.

      1. Undue Burden or Fundamental Alteration: If accommodating the ESA would pose an undue financial or administrative burden on the landlord, or if it would fundamentally alter the nature of the housing provided, a landlord can deny the ESA. Examples include keeping a large animal in a small apartment, or an animal that disrupts other tenants.
      2. Direct Threat: If the ESA poses a direct threat to the health and safety of others that cannot be reduced or eliminated by another reasonable accommodation, the landlord can deny the request.
      3. No Disability or No Disability-Related Need: If the tenant doesn’t have a disability or there isn’t a disability-related need for the ESA, the landlord can deny the request. The landlord can ask for a letter from a licensed mental health professional attesting to the tenant’s need for the ESA.
      4. Excessive Damage or Disruption: If the ESA causes excessive damage to the property beyond normal wear and tear, or if the animal is disruptive to the extent that the peaceful enjoyment of the premises by others is significantly disturbed, the landlord may have grounds to deny the ESA or ask the tenant to remove it.

    Always remember, it is crucial to consult with a legal professional before denying an ESA to ensure you are fully within your rights, and to avoid potential litigation.

    Service Animals and ESAs in California

    In California, both service animals and Emotional Support Animals (ESAs) are recognized and protected under state and federal laws. Under the Americans with Disabilities Act (ADA), service animals are defined as dogs that are individually trained to do work or perform tasks for the benefit of an individual with a disability. A key distinction is that service animals must be trained, while ESAs do not require any specific training.

    California law also provides additional protection to people with disabilities and their service animals or ESAs. The Fair Employment and Housing Act (FEHA) prohibits landlords from discriminating against people with disabilities and requires landlords to accommodate ESAs within reasonable limits.

    The state of California does not enforce breed or weight restrictions for service animals or ESAs, and landlords cannot refuse accommodation based on these characteristics. However, landlords can deny accommodation if the animal poses a direct threat to the health and safety of others, or if the animal would cause substantial physical damage to the property.

    California AB 468

    California Assembly Bill 468, enacted in 2020, further strengthens the rights of individuals with disabilities and their Emotional Support Animals (ESAs). This significant legislation clarifies the responsibilities of landlords while dealing with ESA requests and the repercussions of unfair denials. It mandates landlords to make reasonable accommodations in their rules, policies, practices, or services when necessary to afford such a person equal opportunity to use and enjoy a dwelling unit. This includes not only the tenant’s dwelling but also other portions of the property. Infringements of these provisions can lead to lawsuits, fines, and even criminal penalties. As a landlord, it is crucial to be familiar with the nuances of AB 468 to ensure your practices are compliant and respectful of the rights of your tenants.

    California Civil Code 54.2

    California Civil Code 54.2 extends the protections for individuals with disabilities and their service animals or Emotional Support Animals (ESAs). According to this law, individuals with disabilities have the same right as the general public to full and free access to all housing accommodations offered for rent, lease, or compensation in this state. This ensures that no person with a disability is discriminated against on the grounds of their need for an ESA or service animal. The law mandates landlords to provide reasonable accommodations for such animals, irrespective of any existing no-pet policies. Violations of this law can result in hefty fines, making it essential for landlords to familiarize themselves with its provisions and comply accordingly.

    Summary: Service Animals vs. ESAs vs. Pets

    Service animals, Emotional Support Animals (ESAs), and pets each play different roles and are classified differently under the law.

    Service Animals

    Service animals are specifically trained to perform tasks that assist individuals with disabilities and are protected under the Americans with Disabilities Act (ADA). These tasks can range from guiding individuals with visual impairments to assisting with mobility for those with physical disabilities.

    Emotional Support Animals (ESAs)

    ESAs, on the other hand, are not required to undergo specific training. Their primary role is to provide emotional comfort and companionship to individuals with mental health issues or emotional disorders, helping to alleviate symptoms of their condition. While they do not have as expansive protections as service animals, ESAs are recognized under the Fair Housing Act (FHA) and Air Carrier Access Act (ACAA), allowing them to accompany their owners in housing and on flights.

    Pets

    Lastly, pets are animals kept for companionship and enjoyment. Unlike service animals and ESAs, pets do not have specific legal protections or rights of access. Their ownership and management fall under local and state pet laws, which include licensing, vaccination, and leash laws. It’s crucial to understand these differences to respect the rights of those with service animals and ESAs, and to effectively manage pets within the community.

    It’s essential to differentiate service animals and ESAs from pets to avoid any misunderstandings. We’ll clarify the distinction between these categories and emphasize the legal protections afforded to individuals with disabilities and their assistance animals.

    Additional Resources

    For further understanding of Service Animals and ESAs, we recommend the following resources:

      1. ADA Requirements: Service Animals – This U.S. Department of Justice resource gives an in-depth understanding of ADA regulations on service animals.
      2. Fair Housing Information Sheet # 6 – This document by the U.S. Department of Housing provides detailed information about the rights of tenants and the responsibilities of landlords towards service animals and ESAs.
      3. Rights of Individuals with Service and Emotional Support Animals – An overview of laws pertaining to service animals and ESAs, state by state, by the Animal Legal & Historical Center.
      4. California Law on Service Animals – This link leads to a comprehensive guide by the Department of Fair Employment and Housing, California on service animals.
      5. Emotional Support Animal Laws – This article by Nolo, a respected legal advice website, provides a detailed look at laws surrounding ESAs in California.

    These resources should provide you with a comprehensive understanding of the legal landscape surrounding service animals and ESAs.

    Conclusion

    By familiarizing yourself with the legal requirements and obligations surrounding service animals and emotional support animals, you can ensure compliance, foster inclusivity, and create a harmonious living environment for all tenants. Remember, maintaining open communication and understanding the unique needs of individuals with disabilities is essential. Stay informed, be proactive, and provide the necessary accommodations to support those who rely on service animals and ESAs.

    The Crestmont Team

     

    FAQs

    This guide wouldn’t be complete without addressing common questions landlords may have about service animals and ESAs. We’ve compiled a list of frequently asked questions and provided clear answers to ensure you have a comprehensive understanding of your rights and responsibilities.

    A reasonable accommodation could include allowing ESAs in a no-pet building or removing weight or breed restrictions for an ESA. Each request must be considered on a case-by-case basis.

    No, under both federal and California law, landlords cannot charge additional fees, deposits, or rents for ESAs or service animals. These animals are not considered pets.

    For service animals, landlords can ask if the animal is required because of a disability and what work or task the animal has been trained to perform, but cannot request documentation. For ESAs, landlords can request a letter from a licensed mental health professional stating the tenant’s need for the animal.

    Landlords have the right to enforce rules related to noise, disturbance, and damage. An assistance animal can be removed if it poses a threat to the health or safety of others or causes significant property damage.

    No, ESAs are exempt from no-pets policies under the Fair Housing Act. However, the request for an ESA must be reasonable, and the animal must not pose a threat to safety or property.

    Misrepresenting a pet as a service animal or ESA is considered a federal misdemeanor in many places. Penalties can include fines, imprisonment, or both. Landlords have the right to verify the status of a service animal or ESA to ensure compliance with the law.

    While there is no established limit on the number of ESAs a person can have, each request for an ESA must be reasonable. A tenant needs to provide a separate letter from a licensed mental health professional for each animal.

    No, there is no breed specification for service animals. Any dog breed can serve as a service animal as long as they are trained to perform a specific task for their handler.

    Allergies and fear of animals are not valid reasons for denying a service animal or ESA. Balancing the needs of all tenants might be challenging, but disability rights take precedence under federal law.

    The discomfort of other tenants is not considered a valid reason for denying an ESA or service animal. Landlords are required to make reasonable accommodations for tenants with disabilities, and this includes the use of ESAs and service animals.

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