Under federal and Virginia fair housing laws, a landlord must provide reasonable accommodations for persons with disabilities. A person is considered disabled when he or she has a physical or mental impairment that that substantially limits one or more of that person’s life activities, and that person has a record of having the impairment or is regarded as having the impairment.

Many people who have invisible disabilities are assisted by emotional support animals (ESAs). An ESA is an animal that helps a person alleviate symptoms of a mental or emotional impairment by providing companionship and affection. Unlike service animals, such as seeing eye dogs or hearing ear dogs, ESAs typically do not have specialized training. And unlike in the visibly disabled owners of service animals, persons who rely on ESA’s tend to have disabilities that are invisible, such as emotional or mental illnesses, PTSD, or epilepsy.

With the growing popularity of ESAs, many landlords unwittingly may be violating fair housing laws by strictly enforcing no pet policies or by charging pet deposits and/or higher rents to tenants who have pets that qualify as either service animals or ESAs.

If a potential tenant has a service animal or an ESA, a landlord generally must allow the animal to live with the tenant in the rental unit, even if the landlord has a strict “no pets” policy. And, the landlord cannot require a pet deposit or charge a rent premium for having the ESA or service animal. The landlord can however, charge the tenant for actual damage done to the rental unit by the animal, and the tenant must abide by all the landlord’s and the applicable jurisdiction’s rules such as noise restrictions, leash laws, cleaning up after the animal, licensing, ordinances regarding dangerous animals, and the like.

Landlords are beginning to encounter tenants who are attempting to sidestep pet restrictions and deposits by claiming that their household pet is an ESA. Not surprisingly, an internet cottage industry has emerged to provide “ESA verification letters” to tenants who do not have legitimate disabilities.

How does the landlord evaluate the legitimacy of the claim by a tenant that the animal is a true ESA, particularly when the law prohibits the landlord from even asking the tenant what the tenant’s disability is?

The Virginia Department of Professional Regulation (DPOR), which enforces the Virginia Fair Housing Act, suggests some best practices for the landlord to employ.

According to the DPOR guidance document, a landlord has the right to ask for reliable disability-related documentation that confirms that the potential tenant is disabled as defined in the fair housing laws, and describes how the animal will help the disabled person to use and enjoy the rental unit. With respect to the verification documentation, the landlord can require that the medical professional or other “verifier” of the disability has a “therapeutic relationship” with the potential tenant in order that the verifier is in a position to know about the individual’s disability. The landlord can ask how often the verifier sees the potential tenant, whether the verifier is regulated by the state, whether the verifier is trained in any field related to persons with disabilities, and whether the verifier is recognized by peers or the public as a provider of therapeutic care.

DPOR suggests the types of people who would be “credible verifiers” include licensed physical therapists, doctors, audiologists, nurses, pharmacists, speech and language pathologists, and persons licensed by the department of health, or the department for aging. The guidance document emphasizes that this list isn’t exclusive. With respect to online services, DPOR notes that practitioners who treat a Virginia resident through online service should be licensed in Virginia.

Landlords should be wary of enforcing a pet policy that runs afoul of fair housing requirements. In the case of fair housing, the bite is truly worse than the bark. Civil penalties for violations are substantial – up to $50,000 for a first violation; and up to $100,000 for any subsequent violation.