Emotional Support Animals
a Legal Gray Area in SC,
Especially for Property Managers

By Elyssa Vondra
09/11/18

Giving a woof here and a tail wag there may be all dogs need to do to comfort their owners. But does providing comfort make them “service animals”? The American With Disabilities Act says no. Recently, some people are designating man’s best friend as “emotional support animals” — and what rights this includes is still unclear.

You’ve likely seen headlines about the emotional support peacock that was barred in January from boarding a United Airlines flight in New Jersey. And South Carolina’s Senate has debated bills to define and regulate emotional support animals. But this new category of companion animals raises a slew of other legal and functional challenges.

Bill Cantey of Cantey & Company, Inc., is one South Carolina property manager who has faced confusion and frustration from the lack of clarity surrounding laws on emotional support animals.

Currently, more than a dozen renters in properties that Cantey manages have alleged emotional support animals.

This number has risen exponentially over the past year or two.

“All summer long, we’ve had more and more [emotional support animal applicants],” he said. Many are college students.

He currently will allow emotional support animals in any of his 800 housing units — even the ones that don’t allow pets. He also waives the pet fee for tenants who present a doctor’s note and/or other documentation supposedly certifying their pets as emotional support animals.

He said he was advised by the South Carolina Association of Realtors to do so. He claims he was told that the emotional support animal owners could potentially sue him otherwise, and it was up in the air who would win the court battle.

“I guess it’s a gray area,” he said. Though he could charge, “it’s not worth getting sued over.”

Dori Tempio, director of community outreach and consumer rights for Able South Carolina, which provides services for people with disabilities, says that emotional support animal-owning tenants aren’t covered under the ADA — but they are covered under the Fair Housing Act, which requires landlords to make “reasonable accommodations.” [online copy corrected]

Tempio notes that both she and ABLE South Carolina support accommodations for people with a need for an emotional support animal. However, there are differences between ESAs and service animals.

“[Emotional support animals] are not considered service animals,” she explains.

Documentation of the need for an emotional support animal from a medical professional is what gives an animal its ESA status. The animal may provide emotional support and companionship to its owner, who may suffer from anxiety, depression or phobias.

Service animals, meanwhile, must be trained to do work or perform specific tasks for a person with a disability. They may retrieve items, remind owners to take their medications, press elevator buttons, or act as seeing eye dogs, Tempio explains. Providing comfort alone isn’t considered a task. Since service animals must do actual work to maintain their title, this factor differentiates them from emotional support animals.

Some supposed emotional support animals aren’t even ESAs under the legal definition. Certificates can be printed from the internet saying a dog is certified as an emotional support animal. The registration packages sometimes even include the signature red vest worn by service animals. Tempio says there’s “no legal precedent,” and that those websites are illegitimate.

Still, emotional support animals maintain more rights than the average pet under U.S. Department of Housing and Urban Development policies.

HUD maintains that emotional support animal owners should be reasonably accommodated within their living spaces. Their health should be balanced against the discomfort to neighbors, Tempio says.

“Sometimes it’s a case-by-case basis,” she adds.

Cantey suspects some emotional support animal owners are indeed trying to take advantage.

“People are using it not to pay a pet fee,” Cantey says.

He’s had people turn in doctor’s notes that he thinks seem illegitimate. He’s had one from a dermatologist and several from doctors who apparently live in different states than their patients.

“It seems like [the tenants] are playing the system,” he said.

Negating the pet fee doesn’t create a major loss of revenue, Cantey admitted, but he’s frustrated with the ethics of the situation.

“I can’t believe people are actually doing this,” he said. “[It’s] ruining it for people that actually need an ESA.” It’s also caused problems in his pet-free units. Other tenants are starting to question why their neighbors can have pets when they can’t, and in some units one roommate will follow suit when a fellow roommate getting their animal certified.

Tempio thinks the differences between service animals and emotional support animals should be clarified, but that redefining the system may be a challenge.

“I think it would take some time,” she said. For now, emotional support animals are a “hot-button issue” that she receives weekly calls about. Some callers are business owners and landlords who don’t fully understand their rights. Others are service animal owners who are frustrated by the equation of their animals with emotional support animals. Still others are emotional support animal owners who believe they should have more protection under the law than they do.

A service animal owner herself, Tempio questions, “At what point do we draw the line?” If regulations on emotional support animals aren’t enforced, everyone with a pet for a companion could potentially end up taking their dogs with them everywhere.

“It is a slippery slope,” she says.