It’s tough to describe the bond between a person and his/her service animal. A blind person may rely on a service dog to navigate the world around them, or someone with depression might find joy and purpose in their emotional support cat. Unfortunately, murky service dog guidelines and a lack of accreditation requirements have given rise to service animal fraud in dog-friendly Colorado.
If you are a landlord, it can be difficult to distinguish between a legitimate service animal and a fraudulent one. This article answers some questions that landlords might have about service animal fraud, the rights of their tenants, and their own responsibilities.
According to the federal Americans with Disabilities Act, a service animal is “any dog that is
individually trained to do work or perform tasks for the benefit of an individual with a disability.” 28 Code of Federal Regulations § 36.104
This includes physical, sensory, psychiatric, intellectual, and other mental disabilities. The work or tasks performed by a service animal must be directly related to the individual’s disability.
For example, someone who has visual impairment may rely on a service animal for assistance with navigation. Or, a service dog may signal to a person who is deaf or hard of hearing when a doorbell, alarm, or other noise sounds. Someone who suffers from seizures could use a service dog to help them, or to get help for them, during a seizure. A psychiatric service dog can help someone with a psychiatric or neurological disability by interrupting self-destructive behavior, reminding them to take medication, or soothing their anxiety.
Although the definition of a service animal does not include animals other than dogs, additional ADA regulations permit the use of a miniature horse that has been trained to work or perform tasks for the benefit of a person with a disability in certain circumstances. 28 C.F.R. § 35.136
Unlike physical disabilities, psychological disabilities—and the purpose of an emotional support animal—are not always as obvious.
Instead of performing tasks, an emotional support animal provides companionship for people who suffer from anxiety and depression. Unlike restrictions to service animal breeds, emotional support animals can range from dogs and cats to hedgehogs and rats.
Emotional support animals give their owners an ongoing sense of security and comfort, and they are undoubtedly beneficial for physical and mental health support. However, their role is more like a pet than a service animal.
Yes. Both service dogs and emotional support animals are covered by the Federal Housing Authority (FHA). This means they are not considered to be pets, nor are they subject to pet fees.
However, there are exceptions to the FHA for some private landlords. For example, an owner of a single-family home that is rented without the use of a real estate agent, a management company, or advertising is exempt from the federal FHA as long as the private landlord or owner doesn’t own more than three homes at the time. This includes the home the owner lives in plus any additional homes. A duplex count as two homes, a triplex count as three, etc. source: American Apartment Owners Association
You are legally allowed to ask your tenant for documentation that supports their need for a service animal or emotional support animal. A person will usually need a recommendation from their medical professional before he or she can obtain a service animal. A letter from a healthcare provider, such as a doctor or a mental health specialist, will usually suffice.
Beware of service animal certificates, such as those issued by the National Service Animal Registry. Anyone with an internet connection can easily acquire one of these certificates, and they should not be considered sufficient evidence. This is not always the case, but it’s something to keep in mind.
Under the FHA, landlords are not allowed to refuse “reasonable accommodation.” This gives disabled persons an equal opportunity to use and enjoy a dwelling.
As a landlord, you should be mindful to not discriminate against people with service or therapy animals. However, per the FHA’s ruling, your tenant’s request cannot put an excessive financial or administrative burden on you. Nor can it fundamentally alter the nature of the housing.
Allowing the animal itself is not considered to be an undue burden. Nevertheless, if you can prove that the animal is disruptive or a threat to the other tenants, then you may be justified in refusing accommodation or pursuing an eviction.
Yes. Per Colorado law, intentional misrepresentation of a service animal is a petty offense.
A person may be charged with intentional misrepresentation of a service animal if:
- He or she intentionally misrepresents an animal as his or her service animal.
- He or she has previously received a written or verbal warning that it is illegal to intentionally misrepresent a service animal; and
- He or she knows that the animal in question is not a service animal or service-animal-in-training. Colo. Revised Statutes § 18-13-107.7
Intentionally misrepresenting a service animal can mean a $25 fine for your first offense. For your second offense, you could be ordered to pay a fine of not less than $50, but not more than $200. Your third or subsequent offense brings a fine between $100 and $500.
If you are a landlord who suspects service animal fraud, you are strongly encouraged to seek legal advice before refusing accommodation to your tenant.
A lawyer can make sure a substantial case exists and act as a buffer against legal ramifications if a court finds that you have violated FHA regulations.
Once you have received an ESA letter from a tenant, you might want to further verify its authenticity. First, you should make sure the letter is from a licensed professional. Most ESA letters will contain the therapist’s name, contact information, and licensing information. You can verify the license number on the relevant state website for licensed professionals.
If it is not obvious what the service animal does, you can ask your tenant the following two questions:
- Is the animal required because of a disability?
- What tasks has the animal been trained to perform?
Please note that you cannot ask your tenant for any personal details concerning his or her disability. However, you can ask a health professional if this person has a disability, and if he or she needs a service animal.
You will generally have 10 days to respond to your tenant’s letter requesting an emotional support animal.
Here is an example of how you might begin your response letter:
You have requested reasonable accommodation for your support animal in accordance with the Fair Housing Act…