Service and Emotional Support Animals: What Property Owners Need to Know

Part I

By Jennifer McMenomy

For many, the difference between a service animal and an emotional support animal can be confusing. Business owners who operate residential properties must understand the difference in order to determine if they can rightfully exclude animals. Additionally, it is necessary to distinguish whether the Fair Housing Act (FHA) or Americans with Disabilities Act (ADA) applies to a semi-residential property, such as a timeshare or hotel. This distinction is dependent on the character of the unit’s use, nature and extent of use, and transiency of residents or guests on the property. If the nature of the residential use is akin to a “vacation home,” FHA will apply. If the character of the use is closer to that of a hotel or motel, ADA will apply. Similarly, Nevada law generally aligns with federal law.

1. FHA and ADA Service Animal Definitions

The FHA requires housing providers to make reasonable accommodations in rules, policies, practices or services to allow people with disabilities to enjoy a dwelling unit. In 2013, the Department of Housing and Urban Development (HUD) declared that housing providers are required to make reasonable accommodations for emotional support animals if 1) the resident has a disability (mental or physical that substantially limits one or more major life activities) and 2) the animal provides assistance to that person.

The ADA is more stringent about what constitutes a “service animal “and states that it is unlawful to refuse a service animal in a place of public accommodation. A service animal under the ADA is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. The ADA does not apply to emotional support animals in general; however, the ADA does make a distinction between psychiatric service animals and emotional support animals.

Under the ADA, a place of public accommodation is required for a service animal unless: 1) the animal is out of control and the handler does not take effective action to control it or 2) the animal is not housebroken.

2. Does the FHA apply?

Within the jurisdiction of FHA, a “dwelling” is defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” While it would appear this excludes a hotel, timeshare, or short-term rental, the Courts have determined a number of factors to determine what a “dwelling” means under the statute.

In Schwarz v. City of Treasure Island, the Eleventh Circuit Court of Appeals identified two principles for determining a dwelling:

1) the more occupants treat a building like their home-e.g., cook their own meals, clean their own rooms and maintain the premises, do their own laundry, and spend free time together in common areas-the more likely it is a ‘dwelling’; and 2) the longer the typical occupant lives in a building, the more likely it is that the building is a ‘dwelling’.

3. Does the ADA Apply?

In general, the ADA does not apply to “a lodging with less than five (5) rooms for rent or hire that is occupied by the proprietor.” However, case law suggests that if the accommodation is similar to or like a hotel it will fall under the ADA. Individually-owned residential condo units are generally not considered public accommodations under ADA; however, if a condominium complex is generally indistinguishable from a hotel, they will be subject to ADA.

While this general rule is from an unpublished decision from the Southern District of Florida, it is similar to case law determining whether the FHA applies. the nature of the complex and whether the character of the association is akin to a residence or a hotel will likely by determinative. It is therefore likely, if the FHA applies, the ADA will not apply and vice-versa.

4. Nevada Discrimination in Housing

Nevada Revised Statutes (NRS) define a “dwelling” to mean “any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof.”

NRS provides that a landlord cannot refuse to rent a dwelling to a person with a disability if the service animal “assists, supports or provides service to the person with a disability.” However, NRS does allow a landlord to ask for documentation.

Ultimately, the characterization of the type of housing will depend on the nature and extent of the use as well as the character of that use in order to determine which law applies. It appears that under all laws, the operator of the property is permitted to request proof and/or documentation to substantiate the claim that an animal is a service or support animal. For individuals utilizing service animals, it is important to ensure your animal is fully compliant and properly designated. Likewise, if you are a property owner who is considering excluding animals, it is vital to confer with legal counsel to discuss the specific ramifications of excluding animals from your property as the applicable provisions are extremely nuanced.

See the article: NNBV