Many landlords have historically attempted to limit the presence of pets in rental units, or to forbid tenants from having pets in their units. Landlords also often charge additional pet deposits or cleaning fees for tenants who have pets. The reasons for pet restrictions are simple:
Pets may cause damage to a rental unit or landscaping;
Some pets may present a danger to other tenants, their property, or their pets;
Some pet owners fail to clean up after their pets, creating hygiene issues; and
Pets may create noise issues that affect other tenants.
Despite restrictions and "no pets" policies, landlords have long had to deal with tenants sneaking pets into their units, whether to avoid a prohibition on pets or to avoid paying additional fees or deposits. Landlords have long accommodated the presence of service animals. However, with the introduction of legal protections for emotional support animals, it may be time for landlords to reconsider pet bans and additional pet fees, in favor of policies that allow tenants to have pets with the additional cost built into the basic rent amount.
Although this article discusses pet policies it is important to recognize that, under the law, service animals and emotional support animals are not considered to be pets. The policies that otherwise apply to pets do not apply to those animals:
Service Animal - A service animal is trained to perform tasks for the benefit of a person with a disability. Disabilities need not be physical in nature, and a service animal may also provide assistance for a person with a mental health, intellectual, or sensory disability.
Emotional Support Animal (ESA) - Emotional support animals provide companionship to individuals who are experiencing a psychological or emotional disability. They need not be trained to perform any tasks or services.
When a tenant wants to bring a service animal into a rental property that does not permit pets, a landlord can ask the tenant to provide written verification from a healthcare provider that the tenant (or an occupant of the tenant's unit) is disabled and that the service animal is needed, but they are not entitled to any details relating to the tenant's disability or needs. For an emotional support animal, the landlord may request that the tenant provide a letter from a licensed mental health provider, stating that the tenant has been psychologically diagnosed as a disabled person and a prescription for an emotional support animal. As with a service animal, the landlord may not require further details.
Laws protecting a right to an emotional support animal arise from psychological studies that show benefits of a companion animal to people with certain mental health conditions. However, due to the breadth of the law, a cottage industry has arisen through which a tenant can pay a modest fee and, in a matter of minutes, be issued a letter prescribing an emotional support animal. These services can be easily found online, and it would surprise me if any of them has even once failed to provide an ESA letter to a customer who has paid their fee.
Although smaller landlords may be able to avoid the application of the federal ESA law, additional restrictions may apply under state law. However, smaller landlords are often those most affected by tenants who sneak pets into their units and thus, even after confirming exemption under state and federal law, may find that they also benefit from moving away from a "no pets" policy.
Once a tenant has met the minimal documentation requirements for having a service animal or emotional support animal, a landlord must allow the tenant to keep the animal without charging any additional fees or deposits. That is, the landlord may not charge a pet deposit, an additional cleaning fee, or any other fees relating to the presence of the animal.
If the tenant needs to modify the unit to accommodate the animal, such as by installing an internal or external pet door, the landlord may charge for restoration of the premises at the end of the tenancy. The landlord may also charge for any damage caused by the animal, including making deductions from the security deposit.
Landlords have long had to deal with deception by tenants who want to avoid pet restrictions. When landlords uncover evidence that a tenant has a pet, tenant responses have historically ranged from a flat denial, to a claim that the pet belonged to a guest, to the claim that the pet isn't theirs but that they're taking care of it for a couple of days for a friend.
Historically, a landlord could respond to a tenant by indicating that the pet needed to be removed from the unit, or additional fees would apply or an eviction action might be commenced. With the proliferation of services that will provide an ESA letter for a fee, a savvy tenant can now simply get an ESA letter, hand it to the landlord, and avoid consequence.
Landlords who move away from pet restrictions may find that they benefit from being able to market their properties as pet-friendly. By building any pet fees into their basic rent, concerns about tenants sneaking pets into their rental properties are minimized. Landlords can also update their units with pets in mind, for example by using floor coverings that will withstand the presence of pets and be easily cleaned. Carpet can often be replaced with vinyl flooring, a cost-effective product that is increasingly attractive, tile, or other solid flooring that is resistant to scratching and urine damage.
Even when choosing to ban animals other than service animals and emotional support animals, landlords should discuss the possible or actual presence of animals with their insurance companies to make sure that they are adequately covered for damage or injuries caused by a tenant's pet or animal.
Lifting a no-pets policy does not create a free-for-all. All pets and animals may be required to be safe and non-disruptive to the community. Restrictions that are permissible for all pets and animals include:
Dangerous or Aggressive Animals - Tenants can be required to remove animals that pose a direct threat to other people;
Noise Issues - Tenants can be required to adequately train their animals to prevent excessive barking and other noise issues that unreasonably affect other tenants.
Sanitation - Tenants can be required to clean up after their animals.
Landlords may consider additional restrictions for pets in general, but may have to waive the restrictions for service animals and emotional support animals:
Size, Weight and Breed Restrictions
A landlord who creates a pet-friendly policy may nonetheless want to impose some restrictions on pets and animals. The landlord may have concerns about certain animal breeds, or whether the animal will be too large for a rental unit. A landlord may permissibly impose general restrictions on breed, size and weight. However, those restrictions cannot be enforced against service animals or emotional support animals.
A landlord who wants to impose breed or size restrictions on emotional support animals or service animals may only do so if the presence of the animal will cause the landlord's insurance company to cancel the landlord's insurance policy, substantially increase the costs of the policy, or adversely change the terms of the policy. Landlords should clarify with their insurance companies whether any breed, size or weight restrictions imposed by the policy will be applied by the insurance company to service animals or emotional support animals. Insurance companies that define terms that are not friendly to the rights of disabled tenants may, themselves, become the targets of human rights investigations.
Spaying and Neutering
In order to minimize problematic behaviors, landlords may choose to require that pets be spayed or neutered. Before attempting to enforce such a rule for a service animal or emotional support animal, a landlord should verify their rights under state law with their real estate lawyer, state attorney general's office, or state human rights commission.