I Want No Animals in My Rental!

Many homeowners have a strict no pets policy for their rental units. Reasons could be many, but some common considerations would include the potential for noise for neighbors, damage to the home, hard to remove odors, allergies, cultural or religious reasons and so on. There are no limits on restricting pets from your rental – you are free to do so. However, your private property rights may be trumped by other laws when we start talking about Assistance Animals, Service Animals, Emotional Support Support Animals and Therapy Dogs.

If you lease a property you own by using the services of a licensed real estate agent you are automatically required to following the Federal Fair Housing Law. This federal law provides protection to the following groups:

• Sex
• Race
• Color
• Religion
• National origin
• Familial status
• Disability

Virginia has further expanded the Federal law. The 2020 General Assembly passed several bills that amend the Virginia Fair Housing Act, as well as other civil rights and equality laws, such as those related to employment and apprenticeship programs, public accommodation, banking, insurance, and public contracting. The protected classes in the Virginia Fair Housing Act now include:

• Sex
• Race
• Color
• Religion
• National origin
• Familial status
• Disability (renamed from handicap through the laws)
• Elderliness
  *Source of funds
  *Sexual orientation
  *Gender identity
  *Status as a veteran

*These last 4 classes are new. The Source of Funds class created new obligations on many landlords in regards to Housing Assistance Payments and Section 8 – see Should I accept Housing Voucher/Section 8 tenants?

Over the past year or two, there has been a drastic increase in awareness in regards to “Emotional Support Animals” (ESAs). There have been articles in the news about emotional support peacocks and emotional support squirrels. We have seen tenants apply for homes with no pet policies, move in, request for permission for a pet and then upon denial, turn around and provide a letter stating that the animal is an Emotional Support Animal.

Federal and State laws have to be followed. If the animal is required as a result of a disability it is no longer a pet and an owner cannot deny the animal.  The American with Disabilities Act (ADA) does specify that service animals are restricted to dogs and miniature horses. Yes, you read that right, miniature horses!  There are no limitations on the weight and breed of the dog, so as dog meets the criteria, the dog has to be allowed. No extra deposit can be charged and no fees can be assessed other than for normal wear and tear. It is unclear if scratches on hardwood floor from dogs heavier than 20-30lbs can be claimed as damage – this could be considered normal wear and tear for dogs of that weight (see our article on that here.)

Are ESAs the same as service animals? What is an assistance animal? What is the difference?

The Fair Housing Act defines assistance animals as animals that work, assist, or perform tasks for the benefit of a person with a disability, including providing emotional support that alleviates or improves the symptoms or effects of a disability.

Assistance animals can be service animals, emotional support animals/comfort animals or therapy dogs.

See below for details on how these animals are classified:

A tenant or prospective tenant may ask for an accommodation or reasonable modification at any time during the lease.

• An accommodation would be a change to policy. For example a change from a no pets policy to permitting the assistance animal. Another example could be allowing a large dog into a building that has a “small dog policy”.  It could also be allowing a tenant who lives in a “strictly no pets” home to be visited by a person who has a service animal.
• A modification would be a structural change made to the home. For example, this could be adding a ramp to the access the home, changing door knobs to a different type, adding grab bars in the bathrooms etc. The tenant is required to cover the cost of the modification and to return the home back to the original condition at the end of the lease. The Fair Housing law does not allow a landlord to refuse modifications, if they are paid for by the tenant and if they are required for the tenant to have full enjoyment of the premises.

So, keep in mind that when listing your home for rent with an agent, you can certainly specify “Absolutely no pets in MY home – NO exceptions. Don’t even try asking!”, but you might end up with an animal in the home regardless.

Note 1: If you lease your home on your own without an agent and own no more than three single-family homes, you MAY have a few options when it comes to not following federal Fair Housing Act. See e.g. Sec 803.b.1   Fair Housing Act (justice.gov) You will also have to consider the Virginia Fair Housing Law

Note 2: We are not attorneys, so please speak to an attorney before taking any decisions.

Feature Image attribution: Pete Markham, CC BY-SA 2.0 , via Wikimedia Commons