Finding the right home is about creating a space where every member of your household feels safe, comfortable, and welcome. For some, that includes beloved animal companions who provide essential support.

The terms service animals and emotional support animals (ESAs) are sometimes used interchangeably, yet they have very different definitions and legal protections. Both types of assistance animals are protected under fair housing laws, while only service animals are covered by the Americans with Disabilities Act. According to HUD, 60% of all FHA complaints involve denial of reasonable accommodations with many cases centering around assistance animals. 

Let’s explore the differences between service animals and ESAs, as well as their legal rights regarding housing.

WHAT IS A SERVICE ANIMAL?

Only dogs (and miniature horses in certain situations) can be considered service animals. They must be individually trained to perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Under Title II and Title III of the ADA, service animals are allowed to accompany people with disabilities in places where the public is permitted.

When it is not obvious that a dog is a service animal, entities may ask only two questions:

1. Is the dog a service animal required because of a disability?
2. What work or task has the dog been trained to perform?

Staff cannot ask for documentation on the dog, request that the dog demonstrate tasks, or inquire about the individual’s disability.

WHAT IS AN ESA?

An ESA can be any animal that provides support to an individual with a disability. They can receive special training, though this is not a requirement. ESAs do not have the same protections as service animals as they are not covered by the ADA, and therefore are not granted access to places where the public can go.

HOUSING PROTECTIONS

As previously stated, both service animals and ESAs are protected by the Fair Housing Act. The FHA requires housing providers to make reasonable accommodations to an individual with a disability in order for them to have full use and enjoyment of their dwelling. Assistance animals are not considered pets, and therefore may qualify as a reasonable accommodation to pet-related policies. Housing providers cannot charge pet deposits or fees for an assistance animal. However, the owner of an assistance animal can be held liable for damages beyond the normal wear and tear of a human tenant (such as damage caused by biting and scratching or soiled carpet).

Landlords can request proof of disability as a condition of the accommodation. As HUD’s previous 2020 guidance notes, the online sale of “certificates” for ESAs has complicated this verification. In general, owners of assistance animals should know that there is no formal registration nor mandated forms for proof of disability. If the disability or reason for accommodation is not obvious, you can provide a letter from a licensed healthcare provider confirming that they have a personal medical relationship with you and you have a disability-related need for an assistance animal. You do not have to provide medical records or disclose the exact nature of your disability.

There are some exceptions to these rules. Owners who meet the following criteria are exempt from federal fair housing laws:

1. Buildings with four or fewer units if the owner lives in one of the units
2. Private owners who do not own more than three single-family homes (including the home they live in) and do not use a real estate broker or agent to rent the home. In this situation, the owner still has to comply with FHA’s advertising requirements. 
3. Owners who rent a room or section of their personal dwelling if they do not own more than three homes
4. Housing communities that qualify as “Housing for Older Persons” are exempt only from the familial status requirements

Landlords are also permitted to refuse an accommodation if it causes an undue financial burden. The legal bar for proving this is relatively high. One such sticking point is insurance breed restrictions. 

While FHA prohibits restrictions on breed or size, some states allow insurers to ban specific breeds that they consider to be at higher risk for aggression and injury. The ongoing federal court case Chhang v. West Coast Properties has the potential to set a legal precedent regarding insurance and assistance animals. The lawsuit stems from a landlord denying a tenant’s pit bull ESA at the recommendation of their insurance broker. This is a good case for housing providers and insurance brokers to follow as the final ruling is determined. Ultimately, compliance with local, state, and federal laws is a must for housing providers, as well as significant documentation for those who believe they have a case for denying accommodations.

It is also important to note that assistance animals are expected to be under the care and supervision of their owners and display good behavior in the presence of others. Accommodations can be denied or an assistance animal can be evicted if the specific animal poses a direct threat and the owner is not able to adequately control the animal. Examples can include (but are not limited to) an animal that lacks proper enclosure and/or supervision, displays aggression toward others or disruptive behavior that impacts other residents.

It's crucial for renters to understand their rights and for landlords to stay up-to-date on applicable regulations. Let Fair Housing Month serve as a reminder that there’s still plenty of work to be done in the fight for inclusive and equitable housing. Additional resources are available at the National Fair Housing Alliance.