Spotting Tenant ESA Fraud: A Guide for Landlords and Property Managers

Emotional support animals help provide emotional support to people with emotional or mental health conditions. State and federal housing laws protect tenants with ESAs. However, some tenants without emotional support needs use fake ESA letters to get around apartment pet restrictions or avoid pet deposits.

The following guide helps landlords and property managers spot potential ESA fraud. However, before calling out a tenant or applicant for ESA fraud, make sure you understand the consequences of making a mistake. Contact a local landlord-tenant attorney to understand service animal requirements and exceptions.

What Are Protected Emotional Support Animals?

An emotional support animal (ESA) is an animal that provides comfort or companionship to people with mental or emotional disabilities. The Fair Housing Act (FHA) protects tenants with ESAs from housing discrimination and is enforced by the U.S. Department of Housing and Urban Development (HUD).

Under the FHA, landlords must make reasonable accommodations for emotional support animals. This means landlords cannot deny a tenant an ESA because they have a no-pets policy. Landlords cannot charge qualifying individuals pet fees or pet deposits for ESAs.

Landlords generally cannot restrict ESAs based on breed, size, or weight, though they may deny a specific animal if it poses a direct threat to others or would cause substantial physical damage to property.

ESAs are not the same as service animals. Service animals are trained to do tasks to support people with disabilities, like guide dogs or mobility assistance animals. Under the Americans with Disabilities Act of 1990 (ADA), people with qualifying service animals are allowed in public accommodations. However, service animals must still be under the owner’s control.

In a Rental Dispute?

Whether you're a landlord or tenant, use the Super Lawyers directory to find a landlord-tenant lawyer who can answer your questions and defend your legal rights.

Find a lawyer today

Federal and State Fair Housing Act Requirements for Emotional Support Animals

The Fair Housing Act (FHA) is the primary federal law that protects tenants and applicants with emotional support animals.

Under the FHA, landlords must make reasonable accommodations for ESAs, unless the accommodation would impose an undue financial and administrative burden, or would fundamentally alter the nature of the housing provider’s operations. The most common accommodations for ESAs include:

• Allowing ESAs in rentals with a no-pets policy
• Waiving pet fees
• Waiving breed, size, and weight restrictions
• Allowing ESAs in common areas where pets are otherwise not allowed

State housing and public accommodations laws differ from federal standards. Federal housing laws establish the minimum protections for renters with disability accommodations. However, states and municipalities can establish stronger protections.

Some states have extended the protections that individuals with service animals get to people with emotional support animals. State housing agencies enforce violations of local housing discrimination protections.

Check with your state housing and landlord-tenant laws to understand the specific requirements and restrictions on renting to tenants claiming ESA protections.

Can You Deny Valid ESAs for Your Rental Property?

Most landlords must allow emotional support animals as a reasonable accommodation for tenants with qualifying disabilities. However, landlords do not have to accept any support animal under all circumstances. Landlords can deny an ESA request for:

• Direct threats to the safety of other tenants
• Risk of property damage
• Accommodating the animal creates an undue hardship on the landlord
• Tenant does not provide reasonable documentation for a disability that is not obvious
• Tenant provides fraudulent documentation

Landlords can also deny housing applications for applicants with ESA accommodations if the applicant does not pass the standard tenant screening and verification process. For example, a landlord can deny an applicant with a disability-related need based on their poor credit history or prior evictions. However, landlords must apply tenant screening criteria consistently and not deny the applicant based on their disability or other protected characteristics.

Before denying a pet request for companion animals, make sure you document the reason and talk to an attorney about the potential risks. Even if you have a valid and protected reason for denying the ESA accommodation request, the tenant may pursue legal action for alleged housing discrimination.

Tenants are still liable for property damage or injuries caused by their ESA. When the tenant moves out, if there are pet stains, chewed furniture, or other signs of property damage, the tenant is still liable for physical damage beyond normal wear and tear, even if it is a support animal. The landlord can take repair costs out of the tenant’s security deposit.

Is Your Property Exempt from FHA Restrictions?

Some rental properties are exempt from FHA restrictions, including requirements to provide accommodations for ESAs.

Owner-occupied buildings with four or fewer units are generally exempt from some FHA provisions when the owner lives in one of the units. Single-family homes rented without a broker, agent, or management company are generally exempt when the owner does not own more than three single-family homes and does not use discriminatory advertising.

If you are renting out a room in your house or a unit in a small apartment, you may be exempt from FHA restrictions.

Possible Signs of ESA Fraud

ESA fraud is a common tactic for tenants who do not have a qualified service animal but want to get around a no-pets policy and avoid paying a pet deposit fee.

The following are some possible red flags that may indicate the applicant is making a fraudulent request for an ESA:

• The ESA letter is not from a licensed mental health professional or does not include the provider’s contact information:
• The ESA letter was issued the day of the request, indicating the tenant may have recently gotten the letter online without a healthcare evaluation
• The ESA letter is from a provider who does not appear to have a legitimate, ongoing, therapeutic relationship with the applicant, for example, a one-time interaction with little, or no, clinical evaluation
• The ESA letter is a boilerplate template without an individual assessment

If you have doubts about the reliability of an ESA letter, you can request more information, including the patient’s name, whether the patient has a professional relationship with the provider, and the type of animal for the accommodation.

Asking Tenants for ESA Documentation

There are online sites that claim to offer immediate approval for therapy animals, including harnesses and jackets falsely claiming the animal is a service animal. These online sites, which do not provide a healthcare evaluation of the patient, generally do not qualify as proper documentation.

Landlords can ask tenants claiming an ESA for documentation if their disability is not obvious. This does not mean asking about the specific mental, behavioral, or emotional health condition. Instead, the requested documentation should come from a health professional’s official recommendation for an emotional support animal for the specific individual.

Penalties for Violating State or Federal Fair Housing Laws

Before you deny a rental application for a tenant who you don’t think needs an ESA, make sure you understand the penalties for violating state or federal discrimination and disability laws.

A landlord generally should not second-guess a tenant’s disability or demand details about a diagnosis. However, landlords can determine whether the tenant has provided reliable information and whether the requested accommodation is reasonable.

Violating the Fair Housing Act can result in financial penalties, including fines and attorney fees for the prevailing plaintiff filing the claim. The prospective tenant can get an injunction requiring you to rent to the tenant and their ESA, which could cause ongoing stress.

Navigating the changing landscape of emotional support and service animal requests from tenants is complex. Local and state laws may vary from federal civil rights protections. For legal advice about what to do when you suspect ESA fraud, contact a local landlord-tenant lawyer for help.