An emotional support animal can be any animal that helps a person cope with a disability, and does not have to receive any special training. (FILE PHOTO — MediaNews Group)
By DANIEL A GWINN
Q: I own a small apartment complex. I allow my tenants to keep small dogs (up to 25 pounds). I recently found out that one of my tenants is violating the "small dog" policy in a big way: He has a 160-pound Newfoundland named Riley. Another tenant told me that the dog barks while his owner is away. I spoke to the Newfie owner and advised him he is in violation of his lease. I told him he should either find somewhere else to live or find a new home for his dog. He said Riley is an Emotional Support Animal; he needs the dog to help him cope with severe anxiety. He said he has a right to keep the dog under the Fair Housing Act. Riley's a beautiful dog, but doesn't my tenant have to prove that Riley is trained and that he is needed? What are my options here?
A: First, we question your tenant's decision to keep such a large dog in an apartment, regardless of how much the dog helps him with anxiety. It's not fair to the dog! Newfoundlands are known for their gentle nature, but they are social dogs and may become anxious and unhappy if left alone – and then they will bark and whine (and may also become destructive).
However, that's beside the point at present. Before you get into how the tenant should deal with the barking and whining (and there are ways to help a dog adjust to its owner's absence), your tenant has to demonstrate that he has a right under the Fair Housing Act (FHA) to an exception from your usual dog-size rules. He needs to show that he is a person living with a disability and that the presence of the dog is reasonable and necessary to "afford [him] equal opportunity to use and enjoy a dwelling" (42 U.S.C. Sec. 3604).
Allowing a big dog in a building that allows little dogs could be viewed as a reasonable accommodation under the FHA or the Americans with Disabilities Act (ADA), if several factors are met.
First off, the person asking for the accommodation must have a disability, which is described as a "physical or mental impairment which substantially limits one or more … major life activities." An anxiety disorder is recognized as a disability under the FHA. Such disorders are the most common mental illness in the country, affecting almost 20% of the U.S. adult population. But, you don't have to take your tenant's word that he is among that 20% (many Americans suffer some form of anxiety — stressed by a daily inundation of bad news: inflation, scarcity, floods, hurricanes, famine, war and polarized politics). You can ask for a letter from his medical provider stating that the tenant has a disability and describing, in general terms, how this disability affects a major life activity. The note should also state that the presence of Riley is necessary to alleviate some of the symptoms of the disability.
The focus of the law is on the tenant's need for the animal, not whether the creature in question is a "registered" emotional support animal or a specially trained service dog.
A service animal is a dog (or, under special circumstances, a small horse) that has been trained to work or perform tasks for a person with a disability. Leader dogs who help the blind are service animals. Service dogs may also be trained to help those who are deaf or hard of hearing by alerting them to sounds. Some service dogs are trained to assist people with a psychiatric disability by reminding them to take prescribed medications. Seizure response service dogs may be able to predict when the dog owner's seizure is about to occur, and dogs trained to help people with mobility issues by providing balance and stability, picking up and carrying objects and pulling wheelchairs. Trained service dogs are allowed as an exception to a "no-dogs" apartment policy, under the ADA they are also allowed in any public accommodation.
An emotional support animal, on the other hand, can be any animal that helps a person cope with a disability. An emotional support animal does not have to receive any special training; it could be a dog, cat, cockatoo, or even a pot-bellied pig. Emotional support animals do not have to be permitted in public places. In 2018, the U.S. Department of Transportation became so frustrated with people trying to bring untrained (and sometimes questionable) emotional support animals into the passenger compartment of planes, that they banished all such animals to cargo. Trained service dogs, however, continue to have access to travel in coach (or even first class).
Critics of the current state of the FHA's treatment of support animals say the law has gone too far: Some critters claimed as "emotional support animals," are simply much-loved pets. As a quartet of professors and psychologists recently wrote, there is a distinction "between someone who is emotionally attached to and enjoys the company of their pet (which could include most pet owners) versus individuals who must rely on the animal for reduction or alleviation of disability related symptoms." The presence of a large, loving dog might well be comforting; the question is whether the dog is necessary for your tenant to enjoy the apartment. For example, if he suffers severe anxiety, he might be unable to sleep without Riley. This is something a note from a physician or therapist could verify.
Those same critics claim that many pet-owners, with or without bona fide disabilities, have tried to pass their animals off as emotional support animals, often with the assistance of websites that offer questionable "authorizations" and legally irrelevant "ESA registration."
The issue has become sufficiently severe that Michigan's House of Representatives recently passed legislation to address it. (The bill has not been passed in the state Senate.)
The proposed law would impose several requirements before a health care provider could certify that a person with a disability is in need of an emotional support animal: The person seeking the certification must have had a "provider-patient" relationship with the health care provider for at least 30 days; the health care provider must determine that the person with a disability needs the emotional support animal; and the health care provider must reasonably expect to "provide the patient with follow-up medical care to monitor the efficacy of the use of an emotional support animal." In addition, a health care provider – a term that includes physicians, psychiatrists, psychologists, social workers, nurses, etc. — is not allowed to receive a fee "solely in exchange for certifying a person with a disability's need for an emotional support animal."
The proposed law also cracks down on the cottage industry in ESA "registrations." Those who sell a purported ESA registration, tag, vest, etc., without first informing the buyer, in writing, that the registration is essentially meaningless may be subject to a $1,000 fine. The law would also make it a misdemeanor to falsely claim an animal is a service animal, or a service animal in training.
Although the bill has received support from landlord's groups, rental communities, and university housing, it is strongly opposed by the Michigan Department of Civil Rights, the Fair Housing Center of Metro Detroit, and the Michigan Poverty Law Program, among others.
Detractors of the bill say that the proposed law is too restrictive: The certification requirements could prove unduly burdensome to low-income and vulnerable populations, denying the much-needed assistance of a support animal to Michiganders who live with a bona fide disability but cannot meet the financial or other requirements of an established and on-going patient-provider relationship. A State Bar section opposes the bill because it does not align with current federal regulations published by HUD. Others opposed to the bill's passage say simply that the added requirements are unnecessary. The FHA and ADA already provide sufficient protection. Landlords, they say, have right to refuse a requested accommodation if it is not reasonable or presents an undue burden or hardship.
Assuming your tenant comes through with a note from a medical provider that his anxiety does rise to the level of disability and that he needs his (big) dog to have "equal enjoyment of the premises," he may be entitled to an exception from the no-big-dogs rule, if his request is reasonable. Whether a particular request is reasonable depends on the facts of the case. For example, if Riley knocks down children and bites, he could be viewed as posing a threat to the safety of others, and allowing him to remain might be unreasonable. Or, if Riley is exceptionally loud (compared to smaller dogs), so that allowing your tenant to keep him will deny other tenants enjoyment of the premises, the request may be unreasonable. But, before making that determination, you should give your tenant a chance to figure out how to prevent the Riley from making a racket while he is at work.
Troy Attorney Daniel A. Gwinn has a practice focused on employment law, civil rights litigation, probate, and trusts and estates. Contact him with your legal questions at daniel@gwinnlegal.com or visit the website at gwinnlegal.com. "Ask the Lawyer" is informational only and should not be considered legal advice.
www.macombdaily.com
By DANIEL A GWINN
Q: I own a small apartment complex. I allow my tenants to keep small dogs (up to 25 pounds). I recently found out that one of my tenants is violating the "small dog" policy in a big way: He has a 160-pound Newfoundland named Riley. Another tenant told me that the dog barks while his owner is away. I spoke to the Newfie owner and advised him he is in violation of his lease. I told him he should either find somewhere else to live or find a new home for his dog. He said Riley is an Emotional Support Animal; he needs the dog to help him cope with severe anxiety. He said he has a right to keep the dog under the Fair Housing Act. Riley's a beautiful dog, but doesn't my tenant have to prove that Riley is trained and that he is needed? What are my options here?
A: First, we question your tenant's decision to keep such a large dog in an apartment, regardless of how much the dog helps him with anxiety. It's not fair to the dog! Newfoundlands are known for their gentle nature, but they are social dogs and may become anxious and unhappy if left alone – and then they will bark and whine (and may also become destructive).
However, that's beside the point at present. Before you get into how the tenant should deal with the barking and whining (and there are ways to help a dog adjust to its owner's absence), your tenant has to demonstrate that he has a right under the Fair Housing Act (FHA) to an exception from your usual dog-size rules. He needs to show that he is a person living with a disability and that the presence of the dog is reasonable and necessary to "afford [him] equal opportunity to use and enjoy a dwelling" (42 U.S.C. Sec. 3604).
Allowing a big dog in a building that allows little dogs could be viewed as a reasonable accommodation under the FHA or the Americans with Disabilities Act (ADA), if several factors are met.
First off, the person asking for the accommodation must have a disability, which is described as a "physical or mental impairment which substantially limits one or more … major life activities." An anxiety disorder is recognized as a disability under the FHA. Such disorders are the most common mental illness in the country, affecting almost 20% of the U.S. adult population. But, you don't have to take your tenant's word that he is among that 20% (many Americans suffer some form of anxiety — stressed by a daily inundation of bad news: inflation, scarcity, floods, hurricanes, famine, war and polarized politics). You can ask for a letter from his medical provider stating that the tenant has a disability and describing, in general terms, how this disability affects a major life activity. The note should also state that the presence of Riley is necessary to alleviate some of the symptoms of the disability.
The focus of the law is on the tenant's need for the animal, not whether the creature in question is a "registered" emotional support animal or a specially trained service dog.
A service animal is a dog (or, under special circumstances, a small horse) that has been trained to work or perform tasks for a person with a disability. Leader dogs who help the blind are service animals. Service dogs may also be trained to help those who are deaf or hard of hearing by alerting them to sounds. Some service dogs are trained to assist people with a psychiatric disability by reminding them to take prescribed medications. Seizure response service dogs may be able to predict when the dog owner's seizure is about to occur, and dogs trained to help people with mobility issues by providing balance and stability, picking up and carrying objects and pulling wheelchairs. Trained service dogs are allowed as an exception to a "no-dogs" apartment policy, under the ADA they are also allowed in any public accommodation.
An emotional support animal, on the other hand, can be any animal that helps a person cope with a disability. An emotional support animal does not have to receive any special training; it could be a dog, cat, cockatoo, or even a pot-bellied pig. Emotional support animals do not have to be permitted in public places. In 2018, the U.S. Department of Transportation became so frustrated with people trying to bring untrained (and sometimes questionable) emotional support animals into the passenger compartment of planes, that they banished all such animals to cargo. Trained service dogs, however, continue to have access to travel in coach (or even first class).
Critics of the current state of the FHA's treatment of support animals say the law has gone too far: Some critters claimed as "emotional support animals," are simply much-loved pets. As a quartet of professors and psychologists recently wrote, there is a distinction "between someone who is emotionally attached to and enjoys the company of their pet (which could include most pet owners) versus individuals who must rely on the animal for reduction or alleviation of disability related symptoms." The presence of a large, loving dog might well be comforting; the question is whether the dog is necessary for your tenant to enjoy the apartment. For example, if he suffers severe anxiety, he might be unable to sleep without Riley. This is something a note from a physician or therapist could verify.
Those same critics claim that many pet-owners, with or without bona fide disabilities, have tried to pass their animals off as emotional support animals, often with the assistance of websites that offer questionable "authorizations" and legally irrelevant "ESA registration."
The issue has become sufficiently severe that Michigan's House of Representatives recently passed legislation to address it. (The bill has not been passed in the state Senate.)
The proposed law would impose several requirements before a health care provider could certify that a person with a disability is in need of an emotional support animal: The person seeking the certification must have had a "provider-patient" relationship with the health care provider for at least 30 days; the health care provider must determine that the person with a disability needs the emotional support animal; and the health care provider must reasonably expect to "provide the patient with follow-up medical care to monitor the efficacy of the use of an emotional support animal." In addition, a health care provider – a term that includes physicians, psychiatrists, psychologists, social workers, nurses, etc. — is not allowed to receive a fee "solely in exchange for certifying a person with a disability's need for an emotional support animal."
The proposed law also cracks down on the cottage industry in ESA "registrations." Those who sell a purported ESA registration, tag, vest, etc., without first informing the buyer, in writing, that the registration is essentially meaningless may be subject to a $1,000 fine. The law would also make it a misdemeanor to falsely claim an animal is a service animal, or a service animal in training.
Although the bill has received support from landlord's groups, rental communities, and university housing, it is strongly opposed by the Michigan Department of Civil Rights, the Fair Housing Center of Metro Detroit, and the Michigan Poverty Law Program, among others.
Detractors of the bill say that the proposed law is too restrictive: The certification requirements could prove unduly burdensome to low-income and vulnerable populations, denying the much-needed assistance of a support animal to Michiganders who live with a bona fide disability but cannot meet the financial or other requirements of an established and on-going patient-provider relationship. A State Bar section opposes the bill because it does not align with current federal regulations published by HUD. Others opposed to the bill's passage say simply that the added requirements are unnecessary. The FHA and ADA already provide sufficient protection. Landlords, they say, have right to refuse a requested accommodation if it is not reasonable or presents an undue burden or hardship.
Assuming your tenant comes through with a note from a medical provider that his anxiety does rise to the level of disability and that he needs his (big) dog to have "equal enjoyment of the premises," he may be entitled to an exception from the no-big-dogs rule, if his request is reasonable. Whether a particular request is reasonable depends on the facts of the case. For example, if Riley knocks down children and bites, he could be viewed as posing a threat to the safety of others, and allowing him to remain might be unreasonable. Or, if Riley is exceptionally loud (compared to smaller dogs), so that allowing your tenant to keep him will deny other tenants enjoyment of the premises, the request may be unreasonable. But, before making that determination, you should give your tenant a chance to figure out how to prevent the Riley from making a racket while he is at work.
Troy Attorney Daniel A. Gwinn has a practice focused on employment law, civil rights litigation, probate, and trusts and estates. Contact him with your legal questions at daniel@gwinnlegal.com or visit the website at gwinnlegal.com. "Ask the Lawyer" is informational only and should not be considered legal advice.
Ask the Lawyer: ‘Emotional support’ dog is too big for apartment, landlord says
“Ask the Lawyer” is informational only and should not be considered legal advice.
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