Hi Everyone!

We are just done with Seminar Season (TM), which is the time of year when our staff head out into the wilds of Wisconsin to talk to folks about tenant-landlord law. During this season, we get more up close and personal with the kinds of concerns that landlords bring to us (many of our seminar participants are landlords, as well as service providers, government folk, and attorneys). I have to say, I love them. It gives us a chance to stay in tune with what's happening around Wisconsin, and we feel like we can really make a difference - we work hard to give folks the best information possible.

One of the Very Big Questions that people, especially landlords, have is about Emotional Support Animals (ESAs). There are new laws that define ESAs in Wisconsin, and establish rules about what landlords have to do, and what they don't have to do (2017 Wis. Act 317, and you can find the summary here). 

But there's a problem: We see some really big clashes between the new Wisconsin laws and federal Fair Housing laws. Generally, states can't take away rights given by federal mandates. And so, it looks like some of these new laws might be giant traps for landlords to fall into - even if landlords carefully follow the new Wisconsin laws about ESAs, they might find themselves in violation of federal law, which is a huge, expensive, problem.

The most basic of overviews: Under state and federal statutes and regulations, persons with disabilities are allowed the use of service animals and emotional support animals (ESAs) in rental housing, where animals are otherwise prohibited. These animals are not considered pets. Landlords must consider them, effectively, as medical equipment.

What is an Emotional Support Animal (ESA)?

An Emotional Support Animal is newly defined by Wis. Stat. 106.50(1m)(im) as "an animal that provides emotional support, well-being, comfort, or companionship for an individual but that is not trained to perform tasks for the benefit of an individual with a disability." (This is consistent with, but not identical to, federal law. An inflexibly close reading of this definition might put someone in violation of federal law.)

When can a tenant request an ESA?

In order for a tenant to request an assistance/service animal as an accommodation for a disability, the assistance animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling or to participate in the housing service or program. Further, there must be a relationship between the individual’s disability and the assistance the animal provides. If these requirements are met, a housing facility must permit the assistance animal as an accommodation.

Landlords may request documentation:

A landlord cannot require an individual to:

• reveal what kind of disability they have, or what disability is treated by the companion/service animal,
• require that the tenant/prospective tenant prove the animal has been specifically trained

Landlords can request two pieces of formal documentation:

1. Confirmation that the individual has a disability. State law says this isn’t necessary if the disability is “immediately apparent.” The landlord cannot ask what kind of disability the tenant has, but can ask for this documentation if the disability is invisible.
2. Confirmation that the animal is necessary to treat a medical condition or a disability.

Who can provide documentation for animals?

Federal and State laws disagree on this. As far as we can tell, THIS IS THE BIGGEST TARPIT/TRAP/PROBLEM AREA. Federal requirements say the person with a disability must provide "reliable documentation." ("Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal," from FHEO 2013-01). Meanwhile, Wisconsin law says that the documentation must be provided by: a licensed health professional (defined in Wisconsin law as a "physician, psychologist, social worker or health professional"), who is licensed in Wisconsin. Wisconsin's law is really, really different from "reliable documentation." 

It looks to us like the federal law is intentionally open-ended, and we have seen many kinds of documentation be supported through its wide gates. It seems like Wisconsin lawmakers were attempting to give landlords guidance about ESAs, but since that guidance restricts rights given by federal law, it doesn't seem viable. Our understanding is that landlords must continue to follow this federal law, no matter what Wisconsin law says.

An imagined example: a tenant is moving to Wisconsin from Minnesota. The tenant is a veteran, and is coping with PTSD. The tenant has an emotional support animal, who helps the vet cope with flashbacks and anxiety. The tenant has a doctors note, from a licensed physician in Minnesota, which explains that the tenant has a disability (it's not visible, so landlords often need documentation), and that the specific animal is necessary to treat the disability. However, upon moving to Wisconsin, he is denied because his letter isn't from a physician licensed in Wisconsin. The tenant files a complaint with HUD, HUD asserts that a Minnesota doctor can give "reliable documentation" for a tenant in Wisconsin, HUD finds the landlord in violation of federal fair housing law, and leverages a maximum first-time fine of $19,787. The landlord has followed Wisconsin law, but can still be held to (and fined by) more open-ended federal law.

Animals can be denied in specific circumstances:

There are few circumstances in which a landlord is allowed to deny a service animal or emotional support animal. Those circumstances (listed in Wis. Stat. 106.50(2r)(br)4) are:

1. If the applicant does not have a disability, or does not have a disability-related need for the animal, then the animal can be denied. (I mean, then it's not technically a service animal or ESA). 
2. If the landlord can demonstrate that allowing the assistance animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the housing program or services. The scope of this is very limited.
3. If the landlord can demonstrate that the specific animal poses a direct threat to the health or safety of a person, that cannot be reduced by another reasonable accommodation. 
4. If the landlord can demonstrate that the specific animal would cause substantial physical damage to a person's property, that cannot be reduced by another reasonable accommodation. 

Charging for Damages:

A landlord is able to charge a tenant for damage done by their ESA or service animal. Wis. Stat. 106.50(2r)(bg)3.

Information for Tenants:

We know that this is hard. It's hard to live with a disability. It's hard to advocate for yourself at appropriate moments. It's hard to know what to say and what not to say, what rules to comply with, and which rules might be overlooked if illegal/discriminatory. We get it. Here are the biggest questions we get. 

Should I tell a prospective landlord about my ESA when I'm applying for a rental home? This is a hard question, and the most commonly asked. If you don't say that you have an animal living with you, it can feel like you're lying by omission. However, if you mention the ESA early on, you can be denied illegally, without you knowing what triggered that denial. Here's a possible series of steps you might follow:

• Apply for housing, without mentioning your animal. (Laws do not require tenants to disclose ESAs or service animals when applying for housing).
• Once you have proof (preferably in writing) that you're accepted into the rental home (and not denied for other, legal, reasons), send the landlord a letter saying that you have an ESA, with your documentation.
• If, at that point, you are denied, you could take a number of steps: file a complaint with Fair Housing, file a complaint with your local government, write a letter asking for the reason for the denial (the landlord doesn't have to give you one, but it's helpful to understand their reasoning if they are willing to give you a reason for denial).
• Generally, it helps to tell the landlord that you have an ESA or service animal before you move in, so that if they have a legitimate reason to deny your ESA (listed above), then you can work out those reasons before you are relying on them to provide you with housing.

My landlord wants more information than the documentation you list above. Should I give it to them? So, you certainly can. You are not liable based on discrimination laws if you choose to give them more information. However, you don't *have* to give them additional information. And, if they deny you because you didn't provide the additional documentation, that's discrimination. 

Should I pay to register my ESA online? No. An ESA registry is a website that asks for money to confirm that you have a registered emotional support animal. This is not required by law and is not, in any way, a replacement for the "reliable documentation" needed to trigger protections under federal law. If any company or website states that registration is required, they are usually a scam and should not be trusted. 

Information for Landlords:

Trust me, I hear you. I hear you saying that these are a pain, and that abuse is rampant. That so many people have these animals who don't really need them. That many "service providers" are just unknown entities on the internet. I hear you.

There are some things you can do here, but first, a plea: the situations where it works - where a person has a disability and their ESA makes it possible for them to be successful in housing: that's magic. People with disabilities struggle. And often, they struggle invisibly. For some, their invisible disabilities make it almost impossible to function in this everyday world, and they often fail to meet their own most basic needs. If someone's ESA makes it so they can live a normal-ish life, and be functional, I hope that we can see the beauty in that, and support those needs. That's the world I want to live in.

Things you can do, if you're concerned about a tenant's ESA:

• Check the credentials of the person who provided the "reliable documentation," and call to make sure they exist. (They will not be able to tell you whether or not they treat the disabled person in question, since that would be a violation of HIPAA laws). The service provider would likely be able to tell you if they wrote the letter that you are holding. 
• Require all tenants (not just those with ESAs or service animals) to have renter's insurance, if you're concerned about your liability. (Note: if you have a renter's insurance rule, but it's only for folks with ESAs or service animals, that's discriminatory, so watch out.)
• Contact resources! Fair Housing wants to help landlords follow laws, and you can always contact an attorney for legal advice. This is really confusing stuff! It would make sense for you to have questions. You can ask for help. 
• If you are denied insurance because of an ESA, then those insurance companies could be fined for violations of fair housing laws, as well. So, again, ask for help! Denying an ESA or service animal because of another organization's discrimination (as opposed to your own discrimination) does not protect you.

Generally speaking, though, it's hard to deny ESAs without facing allegations of discrimination.

A Note on Names:

Emotional Support Animals, Service Animals, companion animals are all names that people use to refer to the animals that help people with disabilities to live a functional life. However, they aren't all the same thing. Under the Americans with Disabilities Act, a service animal is defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." (Note: later on, they tack on miniature horses, so those are technically service animals, as well.) An ESA or companion animal doesn't have to have specific training.

However, the difference between ESAs and service animals isn't relevant for these conversations about ESAs in rental housing. Both service animals and ESAs count as reasonable accommodations for a disability within fair housing law. Therefore, no matter what you call the animal - a companion animal, a service animal, an emotional support animal, among other names - the animal is allowed, as long as: the tenant has a disability, the animal is necessary to treat the disability, as confirmed by reliable documentation.

Resources:

• the Fair Housing Council
• If you're in the City of Madison, you can contact the Dept. of Civil Rights for help, and file complaints through them, as well. 
• Wisconsin's Equal Rights Division
• HUD's complaint procedure
• More information on discrimination is available on our discrimination page

* Hi! Did you know that we are not attorneys here at the TRC?  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.