Assistive Animals

Posted by wasserman

What is the difference between a service animal and a comfort animal?  And are guests of my tenants allowed to enter the building with both despite my “no pets” policy?

This discussion begins with an admonition to all landlords that service and comfort animals, often collectively referred to as assistive animals, are not pets.   Therefore, a “no pets” policy does not apply to or otherwise govern assistive animals.

A service animal is defined as an animal that is individually trained to do work or perform tasks for people with disabilities.  Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, altering and protecting a person who is having a seizure, reminding a person with a mental illness to take a prescribed medication, calming a person with PTSD, or performing other duties.  Service animals are working animals, not household pets.  The work or task a service animal has been trained to provide must directly relate to the person’s disability.

Conversely, a comfort animal, also known as an emotional support animal (or ESA), does not compel the consideration of training as a prerequisite for being an ESA.  Rather, the ESA need only be with the disabled person in order to help that person function.  No certification or training is required, and the ESA is not required to perform any particular function.  ESAs, therefore, are most commonly utilized by persons with psychiatric rather than physical impairments.  For example, a history of recurrent depression may justify benefitting from an ESA.

The SFAA has long advocated the importance of reasonably accommodating tenants with disabilities.  Indeed, we distribute an Assistive Animal Packet to members who have tenants requesting an assistive animal.  This packet provides documentation to (1) verify the legitimacy of the request, and (2) document the rules for residents who bring assistive animals onto the property.  (For example, even though the assistive animal is not a pet and no pet deposit may be collected and a pet addendum shall not be signed, the resident must still ensure that the animal does not endanger other tenants and/or create a disturbance at the property.)

May guests bring their assistive animals onto the property despite a “no pets” policy?  Yes.  As stated above, assistive animals are not pets, so their presence at the apartment does not offend the rental agreement’s “no pet” covenant.  Moreover, a landlord may not take discriminatory action against a tenant’s guest based upon a disability.  Indeed, would you deny a seeing-impaired guest entry onto the property by virtue of a Seeing Eye dog?  The landlord’s remedy is to disseminate the SFAA’s Assistive Animal packet’s behavioral guideline section to the tenant with a writing setting forth the rule that a tenant bears responsibility for the actions of her guests, including the guest’s assistive animals.

There is growing skepticism in our industry with regard to ESAs.  In particular, many landlords are increasingly frustrated by the ease in which a tenant (or a tenant’s guest) may obtain a professional referral to procure an ESA.  This debate is statewide and CAA is taking measures to lobby legislatures to revisit the disability laws.  Until meaningful change is forthcoming, the landlord may only “open a dialogue” with the party requesting an ESA as a reasonable accommodation.  The “open dialogue” course of action is essentially limited to what the Assistive Animal packet seeks:  Verification from the professional (who does not, by the way, need to be a medical doctor) that the tenant has been treated and would in fact benefit from the ESA.  So, in conclusion, be careful not to deny access to tenants and even their guests who are disabled under the law and have the right to an assistive animal.

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