A service animal is a dog (or in rare cases a miniature horse) that has been specifically trained to do work or perform tasks for a person with a disability. An emotional support animal (ESA) is an animal that provides emotional support to a person with a disability just by its presence, no special training is needed. Both service animals and ESAs meet the definition of an assistance animal under the Fair Housing Act (FHA). Landlords are obligated to make reasonable accommodations for tenants with ESAs or service animals. If a tenant or prospective tenant has a disability-related need for an assistance animal, they can ask for a reasonable accommodation.
Even if the property has a no-animals policy, the tenant has the right to seek an exemption from the policy. Under federal law and Massachusetts law, it is considered discrimination for a property owner to refuse to make reasonable accommodations. If requested, a landlord can and should ask for reliable documentation from a physician, psychiatrist, social worker, or other metal health professional that the tenant has a disability and a “disability-related need” for the animal.
An accommodation must not “unduly burdensome,” so it must not impose undue financial or administrative burden on the landlord. Whether an accommodation is reasonable requires fact-specific inquiry and a case-by-case analysis. This analysis should be thorough and should be documented, as discrimination cases are on the rise. If a discrimination claim is successful there can be hefty damages. For example, in December 2022, the Massachusetts Commission Against Discrimination (MCAD) awarded $47,500.00 in damages for a case involving refusal of a dog that they stated was a support animal. Though the MCAD did not obtain facts that supported the dog was a trained support animal, the hearing officer did credit that the animal was an emotional support animal because the dog’s owner believed the dog was a support animal. That was sufficient for damages to be awarded for emotional distress, lack of reasonable accommodation and retaliation.
It is important to note that ESAs and services animals are not considered pets, but rather, they are considered to be an integral part of an individual’s treatment plan for a recognized disability or mental health disorder. Therefore, you are unable to charge additional “pet rent” for a verified ESA or service animal.
If you have questions or would like to discuss these matters, please contact Drayton Law at 508-618-7270.
This blog is for informational purposes only. It should not be considered legal advice. All those who read this blog should seek the advice of a professional before taking action based upon any information provided herein.
