New ESA Rules

Posted by  wasserman 

In a studio apartment, one tenant has an emotional support cat, but now she is asking for  an emotional support dog.  Am I obligated to permit two emotional support animals (ESAs)?  Is there a limit to the number of animals permitted in an apartment?

The short answer is “no,” there are no specific rules stating the maximum number of ESAs a tenant may have.  As long as the animal(s) does not violate any state or local laws and the healthcare professional agrees that the ESAs are there for the resident’s well-being, more than one can be recommended and the owner will likely have to respect and accommodate such a decision.  That said, there are some considerations and obligations on the table.  For starters, each ESA must be covered by an ESA letter from a licensed healthcare professional.  Secondly, ESAs and their caretakers are compelled to comply with the rules and regulations of the building.  This usually means that the animal must properly behave in building common areas, waste shall be properly collected and discarded, aggressive acts towards other animals and residents are prohibited, and the resident is liable for any damage or harm that the ESA inflicts onto people as well as the rental unit and the building itself.  Indeed, if the ESA seriously and continuously misbehaves, the tenancy itself may be in jeopardy.  Members often ask if there is anything that can be done for an excessively loud ESA dog who barks constantly or an ESA cat that ruins the hardwood floors, and the answer is yes, the property owner has similar if not the same remedies as if the ESA was a pet.  For instance, a barking ESA dog creates the same actionable nuisance as though it was a pet that was yapping, and it makes no difference with a security deposit or damage claim if the carpet is ruined by an ESA or a pet.

And please remember that an ESA is not a pet.  This means that clauses prohibiting pets, restricting breeds, or limiting weights in a rental agreement do not apply to an ESA, and property owners should never charge a pet deposit, increase the security deposit amount, or deny an applicant because of the presence of an ESA.  However, you are allowed to verify that the healthcare professional in fact made this recommendation, and you may — and should — disseminate concise building guidelines and expectations for the ESA.  To that end, SFAA maintains a forms package, known as the SFAA Assistive Animal Packet, that contains a verification acknowledgment for the healthcare professional as well building and rental unit guidelines.  This author advises that the packet should always be used both when a new tenant is moving in with an ESA and when an existing tenant brings on an ESA or, as this question posits, each time a new ESA is added to the apartment.

Also, effective January 1, 2022, California has adopted new requirements for ESAs.  In response to complaints that service providers were unethically pretending that tenants required an ESA or, more commonly, never properly interviewing or treating the tenant to ascertain whether or not an ESA was legitimately needed, a new law now imposes some additional requirements for licensed healthcare professionals.  The highlights of this legislation are as follows:  (i)  Businesses that sell or supply a dog as an ESA must provide written notice stating that the ESA is not qualified as a service dog.  Service dogs, unlike ESAs, provide actual functions such as guiding someone who is seeing-impaired or detecting oncoming seizures.  (ii)  Healthcare professionals prescribing ESAs must hold a valid, active license stating the license’s effective date, license number, and the type of license.  Retired SFAA associate attorney Saul Ferster used to bemoan a case he had where a  chiropractor in New Jersey was handing out ESA diagnoses for SF tenants!  (iii) There must be evidence that the healthcare provider established a client-provider relationship with the tenant at least thirty days prior to submitting the ESA recommendation.  Ideally, this requisite eliminates the sham websites and where tenants may receive an instant ESA letter.  (iv)  Lastly, the professional must actually complete a clinical evaluation of the residents regarding the need for an ESA.  This, of course, is something which should have always been a requirement.

In sum, be diligent but not unreasonably onerous when verifying the need for one or multiple ESAs.  Always use the SFAA Assistive Animal Packet, and do not automatically assume that a resident’s claim for multiple ESAs is nefarious.  While the law permits you as the property owner, when faced with a tenant requesting accommodation for more than one ESA, to consider “whether the cumulative impact of multiple animals in the same dwelling constitutes an undue burden or fundamental alteration,” any decision to deny the request should be substantiated with ample evidence that either the request is not supported by a legitimate and verifiable diagnosis or that having multiple animals will somehow unreasonably damage or harm the building.  In other words, be prepared to embrace the request if the diagnosis supports it and the animals do not endanger the operations of the property.

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