Friday, Jun 17, 2022

Your New Tenant Advises They Intend to Move In with Their Emotional Support Alpaca: Can You Say No?

Emotional Support Animals, Image Source: Public Domain


You may have noticed a proliferation of emotional support animals of all types, including alpacas, roosters, and snakes in public and private places. The use of assistance animals is on the rise, and both federal and Virginia laws have been amended to protect a tenant’s right to insist on having these animals in your apartment building or HOA—despite existing housing bylaws or leases prohibiting or limiting certain types of animals.

The federal Fair Housing Act (FHA) and the Virginia Fair Housing Law (VFHL) cover access to and enjoyment of private dwellings, which includes anything from a trailer to a condo to a single family home. With a few exceptions, these laws and regulations apply to all housing providers, property managers, owners, landlords, and real estate agents. Failure to comply with such laws potentially subjects housing providers to private civil actions and actions brought by the Attorney General. Both the FHA and VFHL give disabled persons the right to seek reasonable accommodations to use and enjoy a dwelling. Included in such reasonable accommodation is maintaining an assistance animal in a dwelling. Unlike the Americans with Disabilities Act (ADA) and Virginians with Disabilities Act (VDA), the FHA and VFHL provide broad coverage requiring housing providers to accommodate assistance animals (both service animals and emotional support animals) and do not limit the type of animal to typical domestic animals.

In 2017, Virginia codified the rights and responsibilities with respect to the use of assistance animals in a dwelling. Like the FHA, the Virginia statute specifically established that an assistance animal is NOT a pet and there can be no restriction as to the breed, size, weight, or type of animal providing the assistance, as long as the assistance animal does not pose a clear and present threat of substantial harm to others or to the dwelling. Thus, an emotional support alpaca could qualify as a reasonable accommodation request. While HUD provides guidance as to questions housing providers may ask to evaluate a reasonable accommodation request for an assistance animal, Virginia goes a step further and allows a tenant to support their request through documentation from any person with whom the tenant has had a “therapeutic relationship”, which includes anyone from a doctor to a peer support group member.

A reasonable request may be denied under particular circumstances and with case-by-case consideration. However, the code’s generous protections err on the side of allowing disabled persons to maintain their assistance animal. If you are confronted with these new and puzzling issues in your apartment complex, mobile home park, or condominium association, we can help guide you through the competing interests of the disabled person and the reasonable expectations of your association and your other residents.

If you have any questions about both service animals/emotional support animals or related topics, please contact Joanna E. Thomas