Changes Coming for Emotional Support Animals?

Posted By: Dustin Engelken TAA News & Updates , the ApartMentor ,

Last year, a legislative survey was circulated to TAA Membership seeking out their top legislative priorities. The overwhelming response to that survey indicated that Emotional Support Animals (ESAs) were the biggest problem facing membership and the top priority for new legislation. Anecdotal reports from the last year support the results of that survey as ESAs have continued to be a hot topic at Government Affairs Committee Meetings, PAC Events, and continuing education classes such as Fair Housing, Lease Review, and Legal Issues. In response to these queries, TAA has worked with partners at AANC and across the state to develop comprehensive legislation that will seek to address the problems presented by ESAs. However, before we jump into the proposed remedies, it’s important to look at what the problem is first.

In the last couple of years, landlords have received a flood of reasonable accommodation requests for assistance animals. Requests for accommodation come in many forms, such as an exception to community rules that prohibit animals in no-pet buildings or prohibitions on breed restrictions, as well as rules requiring a resident to pay additional fees or deposits for a pet. These accommodation requests negatively affect the ability for properties to assess pet deposits and fees, and to apply rules and policies to a resident’s animal making properties less safe for residents and staff, and less profitable for owners. Additionally, they expose properties to possible fair housing complaints. Unfortunately, many apartment-dwellers have taken note of the loopholes available from a lack of clarity in federal law. Additionally, a cottage industry of online outlets have developed that will produce the verification required by law for a small fee. The law does not give landlords clear guidance on compliance, and many have adopted the position that it is better to accept a questionable request for accommodation than to make the wrong decision and face a housing discrimination complaint.

The National Apartment Association has worked diligently on the issue at the federal level, urging the US Department of Housing and Urban Development to revise its regulations regarding ESAs and exploring other steps to mitigate potential abuse and ensure the benefit of a reasonable accommodation applies only to those with a legitimate need. While many around the country have been eagerly awaiting these changes, a number of state legislatures have filled the vacuum with their own new rules. In total, thirty-three states have adopted new laws of all sorts to try and address this issue. As TAA and AANC began to look at developing proposed legislation for North Carolina, these thirty-three states offered a full spectrum of potential solutions, but in the end, the decision was made to produce draft legislation based off a law now on the books in Indiana, a law which is considered by many to be the toughest in the country to address ESA abuse. That legislation, House Bill 796 (HB 796) was introduced earlier this year and has already passed the North Carolina House of Representatives, and now awaits action in the Senate before it will take effect. While it is too early to begin changing your policies, we wanted to offer a brief summary of the proposed changes included in the bill.

HB 796 covers several key areas in an attempt to curtail abuse of pet policies by residents. First, the bill defines an ESA as a companion animal that a health service provider has determined provides a benefit for a person with a disability. The provider must be licensed in North Carolina and is defined as a physician, nurse practitioner, physician assistant, psychiatrist, psychologist or clinical social worker. Second, the legislation confirms the tenant’s right to housing cannot be infringed upon because of their disability, or their use of an ESA, but also allows the landlord to require and verify documentation that confirms the individual has a disability which necessitates the use of an ESA. Third, individuals or entities such as third-party websites providing documentation for an ESA for a fee are expressly prohibited. The bill also makes it a Class 2 misdemeanor for anyone who misrepresents their need for an ESA or for any health service provider who provides false documentation, which could result in fines of up to $1,000 and 60 days in jail. Finally, the bill confirms that a tenant with an ESA must comply with the terms of their rental agreement, pay for the costs of repairs that result from the ESA, and may be subject to an ESA lease addendum.

The rules outlined in HB 796 would make North Carolina one of the leaders on this issue and could serve as source material for other states and perhaps even the federal government as they explore their own solutions to this pressing issue. It is an exciting time to be working on this issue, and we are hopeful that this legislation will pass the Senate and become law in the next several months. In the meantime, please keep an eye out for email updates and calls to action. It will take help from everyone to make sure we get this legislation across the finish line!

This article was originally published in the 2019 June-July issue of the ApartMentor magazine.