Author Topic: My apartments are trying to make me get rid of my ESA  (Read 2422 times)

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Offline LucyRom

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My apartments are trying to make me get rid of my ESA
« on: April 14, 2017, 12:35:05 PM »
I have lived in these apartments over 25 years and owned my dog for 7 years. The rule was always no animals. However, the previous mangers never cared and half the residents own dogs. A new manger came in and is trying to get rid of all the animals. I showed her my doctors note that states the dog is ESA and my many disabilities; after she said "this means nothing, I have to verify it with the doctor and even then we still might not approve it". Is this legal? Is there anything I can do to keep my baby?

Offline iamthelamp

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Re: My apartments are trying to make me get rid of my ESA
« Reply #1 on: April 14, 2017, 05:57:04 PM »
Two questions a housing provider should consider when allowing an ESA:
1) Does the person seeking to use and live with the animal have a disability? You have already proven this.
2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability? Your answer is obviously yes.

Since the answer to both of these questions is yes, the Fair Housing Act requires an exception to rules against pets. Unfortunately some courts will call into question the connection between the animal and alleviation of symptoms of your disability. You may be asked to prove, in some way, that your ESA does directly improve your symptoms.
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Offline iamthelamp

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Re: My apartments are trying to make me get rid of my ESA
« Reply #2 on: April 14, 2017, 06:01:56 PM »
This link here should provide you with some precedents for if "nexus" (the connection between your dog and alleviation of your symptoms) is called into question.
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Offline Moonsong

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Re: My apartments are trying to make me get rid of my ESA
« Reply #3 on: April 14, 2017, 09:07:07 PM »
Here's my understanding of the situation, though Kirsten can give you more precise information:

Having an ESA is not an automatic accommodation, and the same actually goes for the landlords. They cannot just kick out your ESA, end of story. It's a negotiation of what's reasonable to both sides. If your ESA is required because of a psychiatric disability, you have your doctor's note which was written by a doctor in the last year who is currently treating you, and the animal does indeed provide emotional support then it would be considered unreasonable to force you to remove your ESA.

However, on the other hand, if your ESA is being disruptive or destructive, then it would be unreasonable to force the landlord and other residents to deal with that. I'm not saying that's your issue, I'm just listing it as an example of reasonable accommodation for both sides.


All in all, it's going to be a negotiation between you and the landlord. There is no definite yes or no.

Also, I think that they can call your doctor to make sure that they are treating you and that you didn't just get an ESA letter online.
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Offline Kirsten

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Re: My apartments are trying to make me get rid of my ESA
« Reply #4 on: April 14, 2017, 10:20:14 PM »
1.  Some landlords are exempt from the FHAct.
2.  Even those that might be subject to the FHAct might have some opportunity to deny a request for accommodation in certain specific circumstances.
3.  If the presence of the animal is going to cause a hardship of some kind for the landlord (an undue burden or fundamental alteration) then the landlord has a right to negotiate for an alternative solution that removes that hardship.
4.  The PWD may be required to provide some evidence as proof of disability and proof that the need for the animal is directly related to their disability.  That it provides emotional support alone would not be sufficient because basically pets perform that function for the vast majority of people who own pets, even if they aren't disabled.  So to qualify for an ESA you must:
   (A) have a disability recognized under the FHAct
   (B) have a mental illness that is either the disability itself (ie severe/disabling mental illness) or that is directly related to the disability, such as a person experiencing chronic depression due to the loss of their legs.
   (C) a statement from a mental health professional showing the direct link between the presence of the animal and the person's disability (called a "nexus").

In situations (1), (2), or (3) the landlord can reply to the request for accommodation with something other than agreeing to it.  They might deny the accommodation outright, or might offer an alternative or request a conversation to discuss options.  If you think their response was not supported by the law, then you have the option to sue them and get a judge to decide.

Or you can move to another residence where the landlord either agrees to the ESA or already allows pets.
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Offline Moonsong

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Re: My apartments are trying to make me get rid of my ESA
« Reply #5 on: April 14, 2017, 11:55:39 PM »
Perhaps you could try talking to your landlord(s)? Maybe see if there's anything that you can do that would make the presence of an ESA easier on them, i.e. agreeing to only toilet it in a specified area, perhaps near a dumpster, or agreeing to put it through obedience classes to make it better trained and less of a burden, or something like that. See what their concerns may be and see if there's any way that you can alleviate those.

Of course, depending on you, your communicative abilities, and the landlord(s) and their communicative abilities, and your respective personalities/situations I don't know if it's the best idea to do this. However, it's a thought that occurred to me and so I thought I'd offer it up.
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Offline Summertime.and.Azkaban

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Re: My apartments are trying to make me get rid of my ESA
« Reply #6 on: April 14, 2017, 11:59:10 PM »
Most if not all correspondence between a landlord and tenant regarding accommodation negotiation should be done by email, or certified mail if you're old school. You need a record of what you offered and what is ultimately agreed upon.

Letters and emails are easier to formulate than on the fly conversations. If you are going to try and negotiate informally then I'd go that route.
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Offline Suse

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Re: My apartments are trying to make me get rid of my ESA
« Reply #7 on: April 15, 2017, 11:12:34 PM »
That is so true. "He said", "she said", does not often hold up in court.  Use only written confirmed means of communication. But try, at least at the beginning, to make it appear like you are not trying to trap them.

I am wondering also Kirstin. Are there apartment complexes that are exempt from having to have either ESA's or SD's? 

We have one privately owned complex in town that does not accept any federal funding, or any other government funding. He rents to only higher income renters.  And he does not allow pets of any kind, nor ESA's, nor SD's.

Explanation?

Offline iamthelamp

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Re: My apartments are trying to make me get rid of my ESA
« Reply #8 on: April 16, 2017, 01:24:34 AM »
I am wondering also Kirstin. Are there apartment complexes that are exempt from having to have either ESA's or SD's? 

We have one privately owned complex in town that does not accept any federal funding, or any other government funding. He rents to only higher income renters.  And he does not allow pets of any kind, nor ESA's, nor SD's.

Explanation?

Not as expertly as Kirsten here, but I do know that complexes with (I think) four or fewer units, in one of which the landlord themself lives, are exempt.
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Offline Kirsten

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Re: My apartments are trying to make me get rid of my ESA
« Reply #9 on: April 16, 2017, 06:07:22 AM »
Yes, some landlords are exempt, but federal funding has nothing to do with it (that's for the rehab act, not the FHAct).  Few landlords receive any federal funding.

If they have fewer than four units.
If they are a religious entity renting to members of their faith or church employees.
Military bases.
Native American tribal lands, possibly.
A private club.
If renting part of their own home (such as a B&B).
Other.

If you want to know why a specific landlord is exempt from the FHAct, ask them why, then call HUD and ask if that's an accepted exemption.
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Offline Travistee

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Re: My apartments are trying to make me get rid of my ESA
« Reply #10 on: April 16, 2017, 11:28:02 AM »
I think the reality is that if you have a difference of opinion
With your landlord that can't be resolved by negotiation
You have to be willing to pay for the lawyer to fight them in court.

I doubt that any federal agency is going to take
The landlord to court on your complaint, but I'm not a lawyer.

On the other hand I know that there are landlords
That have no problem accepting those online letters.

The online letters won't work in court.
Everything depends on if it's actually going to
Get to a court.

I don't think that Debby with the 22 monkeys is a great
Example of court cases.

Offline Kirsten

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Re: My apartments are trying to make me get rid of my ESA
« Reply #11 on: April 16, 2017, 02:39:53 PM »
That case was about one monkey, Richard, who was banned by the health department from PAs and claimed as a service animal. It was not about her monkey rescue, which was a seperate issue. It's relavent because the judge determined she was not disabled in part because she had not sought treatment. Other PSA cases I've read have all included documentation of the mental illness. Can you cite a different case that addressed the issue of claiming a mental illness based disability with no record of treatment?
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"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline Moonsong

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Re: My apartments are trying to make me get rid of my ESA
« Reply #12 on: April 16, 2017, 06:12:48 PM »
Travistee, are you quoting a poem? Your spacing made it very difficult for me to understand whether you are actually giving advice, or perhaps quoting something, or even possibly sharing some kind of silly poem (the 22 monkeys thing makes me think it could be a joke)? I'm honestly not sure.

Also, it is a negotiation. If the landlords are unwilling to budge, then yes, you would have to sue them over a violation of the FHA in order to try to have your accommodation. However, as far as I've read so far, I don't think that this person has really done any communicating with their landlord(s) other than to explain that the dog is an ESA and to give them their doctor's note. They could still take steps to negotiate with their landlord(s) to see if an agreement/compromise can be reached (and I second the ideas from before of making sure that everything is communicated in some form of writing so that you won't be in a he said she said situation).
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Offline Travistee

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Re: My apartments are trying to make me get rid of my ESA
« Reply #13 on: April 16, 2017, 08:48:03 PM »
Kirsten cleared up the 22 monkey issue.  She said it was about a rescue operation not an ESA case. 

If you have a tough landlord you really have to follow the law.
If you have an easy landlord that just wants something for the file that's a different story.

Offline Kirsten

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Re: My apartments are trying to make me get rid of my ESA
« Reply #14 on: April 17, 2017, 12:30:04 AM »
Kirsten cleared up the 22 monkey issue.  She said it was about a rescue operation not an ESA case.

No, I said the opposite.  The case I cited was specifically about determining whether or not a woman qualified as disabled under the definition shared by the ADA and FHAct based on whether or not she received treatment for her mental illness and it was NOT related to the separate case about her operating a monkey rescue.

That case was Rose v Springfield-Green County Health Department

Here's a plain English summary of the case:  http://lawyersusaonline.com/benchmarks/2009/11/25/poor-richard-service-monkey-gets-the-boot/

And the actual court decision for anyone who would care to read it for themselves. http://lawyersusaonline.com/wp-files/pdfs/rose-v-springfield-greene-county.pdf

The significant bits are these:

Quote
Though Plaintiff claims she has suffered from these disorders since the 1970s, she was not diagnosed with agoraphobia until September2006.1 Prior to the September 2006 diagnosis, the medical history is largely bereft of any references to agoraphobia or social anxiety. During her own deposition, Plaintiff admitted she did not request or receive any prescription medication for anxiety from 1998 through January 2008. On an employee health questionnaire she filled in out in the early 1990s, Plaintiff indicated “no” in response to questions concerning whether she was currently suffering or had in the past suffered from depression, mental illness, or medical disability.2 Later, in May 1999, Plaintiff told her treating physician she had no symptoms of anxiety or depression.

Quote
With this ruling, Plaintiff’s ADA claims are the only claims still pending. Plaintiff’s ADA claims arise under Title II of the ADA against SGCHD, and under Title III of the ADA against Wal- Mart and Cox.6
(Case was an ADA case, not a code enforcement case about operating a monkey rescue)

Quote
To establish a prima facie case under Title II, a plaintiff must show (1) that she is a qualified individual with a disability, (2) she was denied the benefits of a public entity’s service or program, or otherwise discriminated against, and (3) the denial or discrimination was based upon the disability. Schaub v. County of Olmsted, — F. Supp. 2d ----, 2009 WL 2951055, at *6 (D. Minn. 2009). Because the alleged discrimination in this case only involves Plaintiff’s access with her alleged service animal, she must also prove her monkey qualifies as a service animal under the ADA.

Quote
All of the Defendants argue summary judgment is appropriate because Plaintiff is not a qualified individual with a disability and because the monkey does not qualify as a service animal. Defendants also argue that denial of access was proper because it was denied pursuant to legitimate health and safety concerns. After careful review of the parties’ briefing, the Court agrees with Defendants and finds summary judgment is proper for the following reasons.

So in this case, the court found both (1) that she was not a qualified person with a disability (based largely on her lack of treatment history for her claimed mental illness based disability) and (2) that her monkey was not a service animal.

Issues about her monkey rescue operation are separate from (unrelated to) the above case.  Here's the story on that:  http://www.kansas.com/news/article1006169.html
« Last Edit: April 17, 2017, 12:33:01 AM by Kirsten »
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