What Are Support Animals?
Emotional support animals (or "ESAs") are companion animals that have been prescribed for their owners’ emotional benefit. The characteristics of an ESA are that they are deemed to improve the wellbeing of the person with a mental or emotional condition, their mere presence affords comfort to the person who needs assistance, and an ESA’s usefulness is incidental as opposed to integral to a person’s activities of daily living. Note that an ESA is not a service dog or service animal and should not be interfered with in public places by their handlers , tenants, and landlords.
ESAs can be of any species and there are no formal training requirements for them. Common examples are dogs, cats, and birds, but rabbits, guinea pigs, hamsters, lizards and even mice have also been deemed to be ESAs. ESAs are not restricted in size or weight and their access rights are not the same as those of service animals, i.e. ESAs have no legal access to bars and restaurants, schools, parks, and public buildings.
Guide to Federal and State Regulations
In the context of emotional support animals, federal laws primarily revolve around the Fair Housing Act (FHA), which governs how homes and dwellings are to be constructed, modified, and managed. The equal opportunity provisions of this act prevent discrimination against disabled persons, including the category of those who require an emotional support animal. In Washington State, and in particular the City of Seattle, there are no additional laws that govern emotional support animals. So Washington ESGs are protected under federal law, but they still may not live in every rental.
Unlike a service animal, which is specifically trained to perform tasks for the benefit of their disabled owner, mental or emotional support animals are companions. Understanding the difference is sometimes central to the determination of whether the emotional support animal (ESA) falls under the protection of the Fair Housing Act (FHA). With service animals, there are specific exemptions and exceptions. The FHA protects ESAs, and adds a layer of exemption to the relief they can provide from discrimination to those people who acquire a mental or emotional disability.
Generally, if a rental is federally funded, or operated based on federal funding, it is subject to the FHA. However, even your privately-owned and operated apartment complex may fall under the rules of the FHA, depending on the situation. Examples of housing that is covered by the FHA include nursing homes, retirement homes, homeless shelters, public housing, apartment buildings and condo properties, and so on. Homes, hotels, motels, and other public areas are not generally covered by the FHA.
Tenant’s Rights and Responsibilities
Tenants with emotional support animals are affording many of the same rights under Washington state law as people with physical disabilities. The rights of these tenants are varied, but typically they are entitled to housing without the presence of extra deposits or higher rents.
Just like people with physical disabilities, tenants with emotional support animals must be able to provide documentation from a mental health provider that their animal is necessary. This is similar to a letter from a medical professional that provides a medical need for an animal as an emotional support animal. Documentation must also be provided regarding reasonable accommodation. The accommodation for the animal cannot impose an undue financial burden on the property owner or management. In Washington state, while there is no set timeframe for providing the documentation or the request for accommodation, it is best practice to provide the request and documentation as soon as possible. This will reduce the risk of potential problems.
Landlord’s Responsibilities
The Fair Housing Amendments Act of 1988 ("FHAA"), the Washington Law Against Discrimination, chapter 49.60 RCW, and the Washington State Human Rights Commission Regulation WAC 162-26-130(1) (together, "anti-discrimination laws"), require landlords to reasonably accommodate tenants with disabilities. Under the anti-discrimination laws, an accommodation consists of a benefit that allows a person with a disability equal opportunity for housing and access to public services and facilities. The anti-discrimination laws broadly define "disability" and include mental and emotional disabilities. If a tenant has a "disability," the tenant is entitled to a reasonable accommodation; failing to do so could be considered discrimination. Accommodation is not required if it would impose an undue hardship. Historically, some case law suggested that landlords and property management companies may not have a duty to provide an ESA as a reasonable accommodation, but this is changing. As of this writing, we have seen the following cases helping to shape reasonable accommodation rights and responsibilities in this area:
To avoid liability for refusing to allow an ESA, landowners should establish and follow a written process that includes:
Landlords may not discriminate against tenants who have or need an ESA. That said, landlords are not required to approve every request for an ESA. A landlord may be entitled to refuse a request for an ESA under certain circumstances: A tenant requesting an ESA should provide documentation from a mental health professional establishing:
After receiving notice of a request for an ESA and any supporting documentation, landlords should respond in writing providing an approval or denial. If a denial, include specific reasons and cite the legal basis.
Common Issues and Disputes
Even in a standard leasing agreement, the process of deciding on the presence of an emotional support animal can be contentious. As with most agreements of this nature, the negotiation on emotional service pets can often lead to frequent disputes – both before and after the contract is signed. So here are some typical challenges that you may encounter during the process:
"Emotional Support Pet" vs. "Service Animal." Though this may seem like a minor difference, this has become one of the most common reasons for disagreements. As a landlord or leasing company, it is important to note that the Fair Housing Act recognizes emotional support dogs and cats (and certain other species) as a type of service animal. Technically, under most state’s laws, including Washington, an emotional support animal classifies as a service animal per Washington State RCW 49.60.205. So if you are requesting an ESA, what you are really asking for is a service pet – but under the WHA guidelines, that is also the same thing as an emotional support animal. It’s a matter of semantics, but one that you may find your tenant is sensitive to.
Character references. In order to verify that the pet is intended as an Support Animal, it is recommended that patients with emotional support animals require the pet owner to produce a letter from a doctor or mental health professional. This is where a lot of verbal disagreements start. An example may be something like a patient who has been prescribed a dog as a therapy or companion animal. The patient refuses to produce a doctor’s note. Although Washington "emotional support animal rental laws" do not specifically mention a need for a doctor’s note , it is a helpful piece of the puzzle that you may wish to include in an application for a service pet.
Challenges to landlord’s rights. Washington and federal law are on the side of the renter where assistance animals are concerned. Under the Washington State TENANT PROTECTION ACT RCW 59.18.0855, if a tenant obtains a legal order which verifies their requirement for a service pet, the renter does have recourse through the local courts. Although rare, a violation of this law with regard to Assistance Animals can result in criminal charges, namely the charge of criminal harassment under Federal RCW 9A.46 – sometimes referred to as the "anti-stalking law."
Breach of Contract vs. Frivolous Dispute. What happens if you think you have been unfairly accused of denying a service animal request? In the state of Washington an individual may sue for injuries or benefits which they did not receive under their contract. If an animal is requested and you have reasonable cause to believe that an emotional support animal could cause harm to the emergency staff or leave behind significant damages, you may feel you have cause to dispute the service animal contract. Unfortunate events happen. But in Washington this may be categorized as a frivolous legal challenge. Consider speaking with a lawyer who specializes in this type of housing discrimination case to confirm that you are on a legally sound course of action.
How to Properly Handle ESA Documentation
As indicated above, you are not required to register your ESA and pay for a certificate, card, vest, etc. However, even though there are no registration requirements per se, there may be certain circumstances when an ESA letter or prescription may be required in order for you to have your emotional support animal in a no-pets apartment. As discussed in the above section, recently, there has been more focus on emotional support animals and the "therapeutic" aspects they may have for their owners. As this is relatively new, many landlords do not know what a landlord is permitted to ask for and what type of documentation is required before allowing an ESA. As such, many landlords err on the side of caution and ask the tenant for an ESA registration card or emergency contact card, which are not required by law. This section will discuss what type of documents you should have regarding your ESA, how you may go about obtaining one, and how to confirm the document is valid and recognized under the law. Although most of the below scenarios are not required by law to prove that you require an ESA, you may want or need such documentation if: Documenting ESAs That Are Required by Law A common question we receive from tenants is "Do I need a letter from a mental health therapist or medical doctor before my landlord will let me have an emotional support animal?" Letter from Mental Status Therapist or Medical Doctor If you are in a federally funded apartment, duplex, or home, you should have a letter from a medical doctor or mental health therapist confirming your emotional disability and the need for a registered emotional support animal. The letter from your mental health therapist or medical doctor should: ESA Registration and Wants Certificates or Cards to Show Landlord Having a certificate, card, badge, etc. for your ESA is not required by law or regulation under the Fair Housing Act. In addition, if anyone is asking you for a fee, they are attempting to take advantage of you and you should report them. Checking to Determine if an ESA Certificate is Valid At the current time, there are no federal laws that require an ESA to be registered. That being said, many groups have started to charge people for ESA certification and offer emblems, badges, and other similar items. Again, this is not required by law, but it is important to know how to determine if an ESA certificate is valid because some of these groups are taking advantage of people with emotional disabilities. Below you will find guidance on how to determine if an ESA certificate is legitimate.
Sources and Legal Resources
Numerous organizations throughout Washington State provide free or low-cost resources for tenants and landlords alike. The Washington Low Income Housing Alliance is a non-profit network of over 150 organizations working to fight vital affordable housing and homelessness issues off all types and sizes. They maintain a list of legal aid programs that provide free legal assistance to low-income individuals and families in Washington State, including an FAQ section on rental issues. Some of the entries on the list are self-help style legal service websites.
Tenant Law Advocates is another great resource for tenant education. TLA provides free information, direct services , and referrals to tenants in Western Washington with an office in Seattle. Their website has numerous FAQs that address common questions surrounding pets, service animals, and ESA.
LawHelp.org is an online consumer legal information site that offers help to people who cannot afford a lawyer. As a result of a partnership with Columbia Legal Services, LawHelp.org provides tenants and landlords with access to Washington-specific information on rental agreements, deposits, security, retaliatory eviction, and more.
Lastly, the Office of the Washington Attorney General provides information on ESA (though Washington’s relatively limited ADA requirements), listings of free and low-cost legal aid providers, and a general FAQ page.
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