Landlord Law: Emotional Support Animals

December 10, 2020 | Landlord | Law Changes

On April 18, 2018, Governor Walker signed 2017 WI Act 317 which contains several provisions pertaining to the rights of landlords and tenants. In general, the changes are landlord-friendly. The breadth of the act is too large in scope for this blog article. But, check back with KEW Tips for more laws affecting landlords.

This article will focus on one aspect of the law: Emotional Support Animals, because who doesn’t love our furry (and not so furry) friends?

Emotional Support Animals

Emotional Support Animals (“ESAs”) are defined as follows: an animal that provides emotional support, well-being, comfort, or companionship to an individual but is not trained to perform tasks for the benefit of an individual with a disability.

Absent from the definition of an ESA is any type of directive as to what type of animal may be an ESA. So, could someone seek to bring their ESA goat into their apartment? This law doesn’t seem to preclude that, specifically, but that’s where some of the restrictions, listed below, not to mention other laws that are beyond the scope of this article, may come into play.

If a rental applicant or current tenant (“Tenant”) has a disability and a disability-related need for an ESA, a landlord may not act in certain ways that infringe upon the Tenant’s need for the ESA. For example, based on the use of the ESA, an landlord may not do the following: refuse a Tenant’s application for tenancy, evict Tenant, or require extra rent from a Tenant.

Yay, animals galore!

Hold your horses (pun intended, of course). The landlord is not required to take the Tenant for his/her word that the animal the Tenant seeks to keep is in fact an ESA. Unless the disability and the disability-related need for the ESA is readily apparent, the landlord may request reliable documentation that the Tenant has a disability as well as reliable documentation of the disability-related need for the ESA from a licensed health care professional.

Note that a “licensed health care professional” is defined as a physician, psychologist, social worker, or other health care professional who is licensed or certified in the state of Wisconsin; and acting within the scope of his or her license or certification. In other words, something from an “online doctor” eager to write certifications for ESAs is not going to fly.

Tenant liable for damages

A Tenant who keeps an ESA is responsible for all damages to the premises caused by the ESA. So, ESA iguana does not have free reign to scratch through the drywall without any repercussions.

Landlord may deny the ESA in certain situations

The law seems to recognize that allowing tenants to keep ESAs may cause financial and other problems for the landlord, and has placed some restrictions on keeping of ESAs including the following:

• The Tenant is not disabled, does not have a disability-related need for the ESA, or fails to provide the necessary documentation.
• Allowing an ESA would impose a significant financial or administrative burden on the landlord.
• Allowing an ESA would fundamentally alter the nature of services provided by the Landlord.
• The specific ESA that the tenant seeks to keep poses a direct threat to a person’s health or safety that cannot be lessened or avoided by some other type of reasonable accommodation.
• The specific ESA would cause substantial physical damage to a person’s property that cannot be reduced or eliminated by another reasonable accommodation. This is where an ESA elephant may fail (space concerns as well as certain other laws on the keeping of exotic animals would likely preclude the keeping of an elephant as well, of course).
  
  

Tenant fines

The law also places certain safeguards for falsifying information relating to the keeping of an ESA:

• If a tenant, for the purpose of obtaining housing, intentionally misrepresents that s/he has a disability or misrepresents the need for an ESA to assist with the disability, the Tenant shall pay a fine of not less than $500.
• If a licensed health care professional, for the purpose of allowing a patient to obtain housing, misrepresents that the patient has a disability or a disability-related need for an ESA, the health care provider shall pay a fine of not less than $500.
  
  

Any questions regarding what to do with your tenant’s request to keep an ESA? Well, that’s why we exist! Contact Jessica M. Kramer, Leslie Elkins or Nicholas C. Watt for more information regarding laws affecting landlords.

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