The Law of Emotional Support Animals in Rental housing communities: A Guide for Georgia, North Carolina, and South Carolina

By: Kevin Raus – Associate Attorney licensed North Carolina and South Carolina with Brownlee Whitlow & Praet, PLLC

     Finding a comfortable and supportive living environment is essential, especially for individuals with emotional disabilities. Both the federal and state governments have recognized the significant role that emotional support animals (ESAs) play in improving the lives of those in need. We will explore the legal aspects surrounding ESAs in rental housing communities in North and South Carolina. Focusing on the HUD 2020 guidance and relevant state legislation, we will shed light on the rights and responsibilities of residents and housing providers in accommodating these valued companions.

I. Understanding Emotional Support Animals:
     ESAs can be almost any type of pet, not limited to dogs, and their primary role is to offer companionship and emotional support to individuals with disabilities. They provide unconditional positive regard, comfort, and aid through their presence and affectionate nature. Recent research studies have highlighted the positive correlation between companion animals and improved mental health in their owners.

II. Understanding the HUD 2020 Guidance:
     In January 2020, the U.S. Department of Housing and Urban Development (HUD) released updated guidance pertaining to assistance animals, including ESAs, under the Fair Housing Act (FHA). Familiarizing ourselves with the key components of this guidance will provide invaluable insights into the rights and obligations of both residents and housing providers. Here are the key highlights:

1. 1. 1. Definition of Assistance Animals: Under the HUD 2020 guidance, ESAs are recognized as assistance animals and are not classified as pets. Consequently, rental housing communities must make reasonable accommodations for individuals with ESAs, even if they have a “no pets” policy. This means that individuals with ESAs have the right to live in housing that otherwise prohibits pets, if they meet the necessary criteria.
      2. Verification and Documentation: To establish the need for an ESA, housing providers may request reliable documentation, but may not require the use of any specific form by the resident. Acceptable documentation includes a letter from a healthcare professional, such as a licensed therapist or psychiatrist, affirming the individual’s disability and the ESA’s role in providing necessary support. The letter should contain specific information about the nature of the disability and how the ESA alleviates the symptoms. However, there is no requirement under US federal law that emotional support animals must wear a tag, harness, or clothing of any type indicating they are emotional support animals.
      3. Breed and Size Restrictions: The HUD guidance makes it clear that rental housing communities cannot impose breed or size restrictions on ESAs. Such limitations would be deemed discriminatory. However, housing providers can still hold residents responsible for any damages caused by the ESA. It is essential for residents to ensure that their ESAs are well-behaved and do not pose a threat to the safety or well-being of others in the rental housing community.

III: Legal Status of ESAs:

Federally: In the United States, federal statutes such as Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act Amendments of 1988 protect individuals with mental disabilities against housing discrimination. These statutes require housing providers to provide reasonable accommodations, including allowing emotional support animals, to ensure equal enjoyment and use of rental units. Residents seeking such accommodations must establish a qualifying disability and demonstrate a relationship between their ability to function and the companionship of the animal.

State Legislation in North and South Carolina: While the HUD guidance sets the federal standard for ESAs in rental housing communities, it is crucial to consider any additional legislation at the state level. Understanding the legal framework within Georgia, North Carolina, and South Carolina will help ensure compliance. Let’s delve into the relevant laws:

• • • • • North Carolina and Georgia: North Carolina and Georgia do not have specific state legislation regarding ESAs in housing. However, these states generally adhere to the federal FHA guidelines. This means that individuals with ESAs are protected under the Fair Housing Act, and housing providers must make reasonable accommodations. Housing providers in Georgia and North Carolina cannot deny housing or charge additional fees to residents with ESAs, if the necessary documentation is provided. However, there is legislation pending in North Carolina that could change the landscape of the law of Emotional Support Animals in the state. If passed, House Bill 551 would introduce regulations regarding support and service animals in residential tenancies in North Carolina. It defines support animals as companion animals determined to provide a benefit for a person with a disability and includes assistance animals. Under HB 551, Landlords would be prohibited from terminating tenancy, refusing rental agreements, imposing different conditions, or retaliating based on a tenant’s disability status or their use of a service or support animal. Moreover, Landlords would be allowed to require written verification from a health service professional, and individuals intentionally misrepresenting their disability or the status of their animal would face liability and penalties.
        • South Carolina: Like North Carolina, South Carolina does not have state-specific legislation concerning ESAs in housing. Consequently, the federal FHA guidelines are typically followed in the state. Housing providers in South Carolina must accommodate residents with ESAs, provided the necessary documentation is provided. Residents should be aware that there may be variations in how individual housing providers and property management companies interpret and implement the FHA guidelines, so it is crucial to be knowledgeable about their rights and advocate for them.

IV: Resident Responsibilities:

     While residents with ESAs are granted certain rights, it is essential to highlight the responsibilities they must uphold. By fulfilling these obligations, residents can maintain harmonious living conditions within rental housing communities.
Key responsibilities include:

1. Proper Care and Supervision: Residents must ensure that their ESA is well-behaved, properly cared for, and does not pose a threat to the safety or well-being of others in the rental housing community. This includes keeping the ESA on a leash in common areas and properly disposing of waste.
2. Financial Liability: Residents are responsible for any damages caused by their ESA. It is crucial to maintain liability insurance to cover such situations adequately. Additionally, residents should be aware of any specific requirements or regulations set forth by their apartment complex regarding pets or ESAs.

Conclusion:
     Understanding the legal aspects of emotional support animals in rental housing communities is crucial for both residents and housing providers. In Georgia, North Carolina, and South Carolina, the HUD 2020 guidance, combined with adherence to the Fair Housing Act, establishes the framework for accommodating ESAs. By upholding the rights and responsibilities outlined in this comprehensive guide, we can create inclusive and supportive living environments for everyone involved.

     *The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.