I have an issue with Airbnb's policy declaring that an emotional support animal is to be treated the same as an ADA-protected animal, because as a licensed psychotherapist, I am aware that many people are able to easily convince a licensed mental health professional that they 'need' their pet to be documented / authorized as an 'emotional support animal' but the true intent is that they wish to travel anywhere with the animal and not be challenged on it. I know this first hand, as I am a licensed therapist. I have refused more than once such requests (even from a few friends and acquaintances who were not clients!) because they were not justified and it would be unethical for me to agree to such a request - but some therapists are not so diligent. Also, it is my understanding that the ADA does not recognize or protect under the law 'emotional support animals' . Here are the two 'policies' (Airbnb policy and ADA federal law):
Airbnb's Policies: "Emotional Support Animal: Airbnb defines assistance animals to include Emotional Support Animals. These are animals that are used as part of medical treatment and/or therapy to assist with an individual’s daily functional tasks, but are not limited to a specific type of animal and are not required to be trained to assist an individual in a particular task. These animals are sometimes referred to as comfort animals or therapy animals."
And this is from the ADA:
Here's some scintillating reading material on the ADA matter: Many (if not most) hosts are offering transient, not temporary or permanent, housing, and so we would appear to be exempt from these Federal laws, unless the state / locality we live in has enacted adjusted FHA laws. Here's the main point from the article that applies to the issue I am attempting to address. I can see why Airbnb may have wanted to adopt a policy that would cover them in case of discrimination charges as they could simply blame the host for violating their policy; but it would seem that it might be better to treat this issue like they do the Age Requirement issue and refer people to the laws at play in the jurisdiction they live in.
Does the FHA apply to short-term vacation rentals?
"Arguably, the FHA would not apply to most short-term vacation rentals because such rentals are typically “transient” in nature, and the property is not the “residence” of the occupant. However, such determinations should be made on a case-by-case basis. Some relevant factors in determining whether the property constitutes a “residence” subject to the FHA include: (1) the extent to which occupants treat the property like their own home by doing activities such as cooking and cleaning; (2) the length of time the occupant lives in the property; (3) the intent of the occupant to return to the property; (4) the absence of another residence; (5) the presence of common living areas such as a kitchen and living room; and (6) the nature of the occupancy. Id. Note that the length of the stay is not the single determinative factor."
February 3, 2016
Author: Tasha Power
Assistance Animals under the Fair Housing Act - Overview
The Fair Housing Act, 42 U.S.C. §§ 3601, et seq. (“FHA”), with a few limited exceptions, requires housing providers (including owners, managers, condominium associations, lenders, real estate agents, etc.) to make reasonable accommodations to allow assistance animals in housing, despite any “no-pet” policy that may exist. 24 C.F.R. § 100.204
What is an assistance animal? Pursuant to HUD guidelines, an assistance animal is “an animal that works, provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” See, HUD Notice FHEO-2013-01, issued April 25, 2013 (the “HUD Notice”). Thus, assistance animals include those that provide emotional support, companionship, work and/or tasks for disabled individuals. Note that an assistance animal can be any animal, not just a dog. The animal does not need to be specially trained. Also, the animal should not be considered a “pet,” and a housing provider cannot therefore require a pet deposit. The housing provider also cannot limit or exclude assistance animals based on breed, size or weight.
The FHA applies broadly to housing, whether or not federal assistance is required. More specifically, the FHA applies to “dwellings,” which are occupied as, or designed or intended for occupancy as, a residence. See, 42 U.S.C. § 3602(b). While the term “residence” is not defined in the FHA, courts have interpreted it to mean “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.” See e.g., United States v. Hughes Memorial Home, 396 F.Supp. 544 (W.D. Va. 1975). Thus, while a temporary residence may fall under the FHA, a mere “transient visit” does not. Courts have found a number of temporary residences to be dwellings under the FHA including, without limitation, homeless shelters, timeshare units, summer bungalows to which one regularly returns, migrant farm worker cabins, a womens’ shelter, and a drug and alcohol treatment facility. See e.g., Telesca v. Kings Creek Condo. Ass’n, 390 Fed. Appx. 877 (11th Cir. 2010); Home Quest Mortg. LLC v. Am. Family Mut. Ins. Co., 340 F.Supp. 2d 1177 (D. Kansas 2004); Connecticut Hosp. v. City of New London, 129 F.Supp.2d 123, 133 (D. Conn. 2001); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir. 2008).
Does the FHA apply to short-term vacation rentals?
Arguably, the FHA would not apply to most short-term vacation rentals because such rentals are typically “transient” in nature, and the property is not the “residence” of the occupant. However, such determinations should be made on a case-by-case basis. Some relevant factors in determining whether the property constitutes a “residence” subject to the FHA include: (1) the extent to which occupants treat the property like their own home by doing activities such as cooking and cleaning; (2) the length of time the occupant lives in the property; (3) the intent of the occupant to return to the property; (4) the absence of another residence; (5) the presence of common living areas such as a kitchen and living room; and (6) the nature of the occupancy. Id. Note that the length of the stay is not the single determinative factor.
Service Animals under the Americans with Disabilities Act - Overview
Under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”), it is unlawful to refuse to allow a “service animal” in a place of public accommodation.
What is a service animal? A “service animal” is “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.” 28 C.F.R. § 36.104. In addition, the ADA requires that public accommodations permit miniature horses that have been individually trained to do work or perform tasks for the benefit of the individual with a disability. 28 C.F.R. § 36.302(c)(9). Note that only dogs and miniature horses can be service animals under the ADA, and the dogs or miniature horses must be trained to do work that is directly related to an individual’s disability.
A place of public accommodation is required to modify its policies, practices or procedures to allow the use of a service animal by an individual with a disability unless (1) the animal is out of control and the handler does not take effective action to control it or (2) the animal is not housebroken. 28 C.F.R. § 36.302. In addition, with respect to miniature horses, a public accommodation shall consider the following in determining whether reasonable modifications can be made to allow the horse: (a) the type, size and weight of the miniature horse and whether the facility can accommodate these features; (b) whether the handler has sufficient control of the horse; (c) whether the horse is housebroken and (d) whether the horse’s presence in a specific facility will compromise legitimate safety requirements necessary for safe operation.
A “place of public accommodation” under the ADA is lodging operated by a private entity that is:
1) an inn, hotel or motel; or
2) a facility that provides short-term rentals (generally < 30 days) where the occupant does not have the right to return to specific unit after the conclusion of the stay, and that has amenities similar to a hotel, including:
• on-site or off-site management and reservations;
• rooms available on a walk-in or call-in basis;
• housekeeping and/or linen service; and
• acceptance of reservations without guaranteeing a particular room until check-in, with no requirement of a lease or deposit.
See, 28 C.F.R. § 36.104. A “public accommodation” does not include a lodging with < 5 rooms that is occupied by the proprietor as a primary residence. Thus, some bed & breakfast lodgings may be excluded.
Does the ADA apply to short-term vacation rentals?
Again, there is no clear-cut answer and each situation should be analyzed on a case-by-case basis. Generally, if the accommodation is akin to a hotel, it will likely fall under the ADA.
Individually-owned residential condominiums units are generally not considered “public accommodations” subject to the ADA Champlin v. Sovereign Residential Servs., 2008 U.S. Dist. LEXIS 115274 (M.D. Fla). However, a condominium building may be considered a public accommodation if it is “virtually indistinguishable from a hotel.” Id. The Court in Champlin discussed Access 4 All, Inc. v. Atlantic Hotel Condominium Association, 2005 U.S. Dist. LEXIS 41600 (S.D. Fla.), in which a condominium building was in fact considered a public accommodation. In that case, there was no governing condominium association board, certain units were operated as hotel units, the governing documents defined the hotel units, a separate entity was retained to manage room reservations, and every unit owner had the option to include his or her unit in the rental program.
An individually-owned condominium unit that is rented out as a short-term vacation rental of 30 days or less arguably does not fall under the ADA if the condominium building is not operated like a hotel.
Neither the FHA nor the ADA explicitly exclude short-term vacation rentals. However, the FHA does not apply to housing that is so temporary as to be “transient,” and the ADA only applies to “hotel-like” public accommodations. Thus, there is some gray area surrounding the applicability of the FHA and ADA to short-term rentals, such as vacation rentals. Arguably, neither the FHA nor the ADA apply to a “transient” vacation rental of a condominium unit that is not run like a hotel (i.e., the occupant has reserved a particular unit, there are no separate “hotel units,” no walk-in reservations, no lease or deposit, etc.).
However, given the policies of the FHA and ADA to preclude discrimination in housing and public accommodations, and the broad interpretation Courts have applied to the FHA and ADA to further those policies, the determination of whether a service or assistance animal must be allowed in a particular short-term rental property should made on a case-by-case basis. There are cases where either the ADA or FHA will clearly apply, such as a standard residential lease arrangement in which the FHA applies, or a hotel in which the ADA applies.
This article is intended to provide general information and, therefore, should not be treated as legal advice. If you have questions about a specific legal issue, you should seek the advice of a qualified attorney."
all, in looking thru a different thread RE: Host Guarantee, I re-read all the legal docs and noticed this exclusion
"damage caused by insects, animals or vermin (including pets);"
This is in III, 6, VI
So, I have updated my ABB listing this morning to say that we will not host any non-human guests (no animals of any type)
@Kelly-And-Dan0- Ooooh, good catch on that exclusion. Now, here's a related thought: What if a host (like me) has commercial / residential homeowners insurance to protect their shared / rented dwelling, and the insurer does not cover damage caused by insects, animals, etc? The host apparently need not be notified a guest is bringing their comfort / support / companion animal, according to Airbnb. So if there turns out to be an infestation or something like that which requires some time and money to fix (also resulting in lost income), the homeowner might be s&$% out of luck all the way around with no coverage at all - And they never even had the chance to reject the animal, because per Airbnb's policy, it appears they do not need to tell us they are bringing their "ESA".
If a guest brings an animal into my home without telling me, and it destroys the couch and infects my home with ringworm, then they leave and refuse to pay for damages...what happens then? Would Airbnb cover the damages, even though I have no proof the guests brought the animal into my home, and they are claiming they did not have an animal with them?
Not a problem Amy, I admire your dedication to understanding this policy and how it impacts you as a host.
Not to worry, if the cost of damages exceeds your security deposit then the Host Guarantee is still at your disposal.
So the Host Guarantee does cover animal damage such as fumigation from fleas or carpet cleaning?
I encourage everyone concerned about this policy to reach out to any previous guests or inquiry requests that had concerns about pet allergies. Those people should know the dangers of booking on Airbnb; that even if a host has said there has never been, say a cat, in their rental, they actually can't know for sure. As well, if you do reach out to those individuals, encourage them to get informed and share with other people that might need to know this information. Guests with emotional support animals not having to disclose to hosts they are bringing an animal into our homes is, in my opinion, the worst part of the policy.
Horrible . We just became a victim of a 21 year old guests girlfriend with fake dog ID and Airbnb is basically accepting any fake papers submitted it’s unreal
Please beware of fake dog papers . We just became a victim of a guest who booked our place disregarding all requests to contact ahead and immediately threatened us with screenshots of Airbnb non discrimination policy .
When we contacted customer support they basically immediately reached a decision that we violated their non discrimination policy because the guest had an ID - well the ID was from a fraudulent dog registry website not related to any government agency . You just buy an ID and letter . We are trying to appeal the decision because we are losing superhost status for 1 year , have a monetary fine and a warning of suspension of our account .
@Patricia-and-Cody0 I am so sorry to hear this, but sadly, not surprised. One thing to note: It likely was not a 'fake agency'. Emotional Support Animals (ESA's) are made such via a quick and easy online registration process. I am going to paste a comment at the end of this comment here that I made elsewhere on another related post that has a link to one such registration service. I'm a licensed psychotherapist so I know first hand how registering one's pet as an Emotional Support Animal (ESA) works. And it is a very different process than an ADA service animal. I also know how unethical many of these ESA registration services are.
I feel so deeply sorry this has happened to you. As a super host myself, I know how hard we work to maintain high standards and be assets to the Airbnb community. Being concerned that I might experience what you actually experienced is what prompted me to write this post (and a similar post in Host Voice); the policy needs to be revised. The acceptance or non-acceptance of ESAs hould be handled the same as Age Requirements in the United States: Check with your local / state ordinances. ADA-service animals are limited to dogs and mini-ponies, and I myself would do my best to accommodate an ADA-service animal, but legally, I am exempt from having to do so, nor do I need to accept ESAs, based on federal and state laws that support me in denying guests with animals and upholding my No Pets policy.
I would like to think that the guest with an ADA service animal would let me know he or she is bringing his / her service animal as well. I think most would, unlike many guests who got their pet cat or dog (or rooster or llama) registered as an ESA just to be able to take advantage of FHA laws that allow them to travel freely with their dog or cat or snake or rat or iguana or tarantula that apply to temporary / permanent housing (by the way, most short term rentals qualify as transient housing, so are exempt from these laws). Please let us know if you get this sorted out to your satisfaction with Airbnb. I don't think you will be the last host this happens to. And I think it will only get worse. Here is the comment I made elsewhere:
"Thank you for researching this so thoroughly, Amy. Coincidentally, I posted this week in Host Voice on the same topic, expressing related concerns (specifically, Airbnb's policy implies that an Emotional Support Animal is in the same class of protected animal as an ADA service animal - it is not. And, by the way, an emotional support animal can be any animal, any weight, any size, and does not need to have any training).
Airbnb's policy also confuses me in that they indicate that there is no certification process one must go through to declare their comfort 'pet' is an Emotional Support Animal. There IS a (registration) process and part of that process is a licensed mental health professional must sign off on the request during the registration process (which anyone can buy online for less than $200.00 - see attached link that is typical of these registration services that advertise boldly "travel with your pet and never worry about paying fees at hotels again!", etc, etc). I can also tell you, as a licensed psychotherapist myself, that this process is being grossly abused by certain pet owners, and by these registration services as well.
Also, Airbnb's Host Protection Program excludes damage from animals and from flea infestations, etc. So how will hosts be covered in cases where ESAs are brought into our homes (sometimes without our awareness) and (in a worst case scenario) destroy furniture, floors, or leave some fleas behind?
And for those of us who cater to guests with allergies, how do we reassure them our home is pet-free and do extra 'pet' cleaning upon check-out if we may not be aware an ESA was brought into our home / rental?
Lastly, under my state laws, and also federally, I am exempt from having to accept an ESA of any kind and am legally able to uphold my No Pets policy. Why is it that if I exercise my legal rights I am risking being reprimanded or even kicked off the Airbnb platform for discrimination? (I would do all I can to take an ADA service animal into my home, by the way. These are highly trained animals and limited to dogs and mini-ponies, unlike ESAs). This would be very ironic, to be accused of discrimination and / or that I do not support legitimate assistant animals, given I used to teach courses on Diversity Awareness and Sensitivity at a very well known University in California, and as a therapist, I specialize in Animal Assisted Therapy.
I feel very confused about all of this. Here's the link that shows how you can register your pet as an emotional support animal and all the cool things you can then do, like not pay any pet fees and fly your pet for free. Yes, they actually advertise this, and licensed mental health professionals actually work for these places. This particular one states that they do NOT need a letter from "your therapist" - That's because with most of these places you fill out a quick 'mental / emotional health" (anxiety screening) questionairre and some licensed individual that gets paid by the registration service signs off on it behind the scenes. At times, a quick phone call with this licensed person is also required. Disheartening, to say the least."
EMOTIONAL SUPPORT ANIMAL REGISTRATION
"Any Animal can be an Emotional Support Animal (Dog, Cat, Horse, Rabbit, Pig, Goat, Bearded Dragon, Guinea Pig, etc.)"Includes two pet photo ID cards, certificate of registration, service animal access rights handout card, and inclusion in RMSA service animal database.
Any Animal can be an Emotional Support Animal (Dog, Cat, Horse, Rabbit, Pig, Goat, Bearded Dragon, Guinea Pig, etc.)
Please email a picture of your Animal along with your last name or Invoice Number to email@example.com or text photo to (480) 823-5677.
Enter registration information and select "ADD TO CART", you can select "CONTINUE SHOPPING" to order a vest and other products."
The world is full of humans with good intentions, unfortunately it is also filled with humans that will manipulate any new priviledge for their own advantage without mercy toward others.
I am beginning to think hyper-sensitive Airbnb has never seen a new social trend (no matter how unproven or absurd), it didn't like.
Talk sbout Esa and Ada are misleading, the AirBnB policy is much wider that any Federal law and is much more gernerous to guests.
If you travel a lot then paying $70 for a certificate, cheapest I have seen, is much more economical than paying pet fees but the Certificate is NOT needed for ABB bookings but may well be needed in other circumstances.
Personally I would not do this to another Host, my Dog can sleep in the Truck, but might be tempted if I flew a lot.
@David126I understand what you are saying, but I must disagree with your overall premise and argument here. Airbnb's policy suggests they are following and upholding established ESA and ADA policies (which DO require certification / registration), when in fact, they are not. It would seem that they are, in a sense, making up an expansive 'umbrella' policy that will allow them to reprimand hosts for discriminating, when in fact, the host is not (in most cases), keeping them out of hot water with guests and immune from possible legal action on the guests' part if a host attempts to uphold their 'No Pets' policy, which in most cases they have the legal right to do when considered to be renting 'transient' (not temporary) housing (which most short term rentals are).
They might as well just make a policy saying 'Guests may bring any animal they want to any Airbnb they want,without bothering to notify the host, even if their rules state there is a 'No Pets' policy, because we will not allow hosts to verify that the ADA / ESA animal is actually registered and certified, and we do not allow hosts to exercise their legal rights when they are legally sanctioned to uphold their 'No Pets' policy in the juridstiction they live in."
Such an imagined, revised policy around pets and service / companion animals should go on to say: "If you have severe allergies, please know that no host can guarantee that their home is allergen free, because guests do not have to notify them they are bringing their animal if they state it is an ADA or ESA protected animal, and we do not allow hosts to verify the animals registration / certification."
With an honest, open, transparent policy like that, at least we'd all know where we stand - hosts and guests alike.
I tend to look at ABB as a world wide booking service so do not read in any US specific issues unless they are stated as being US specific.
You have a legal right to limit to Service Animals if you use another booking service that allows you to or take bookings direct, now I do allow pets, would like to charge for them but too much hassle using ABB, so currently do not, long story but have looked at other sites who do allow you to charge for Pets and none I have come across require you to give ESA's a pass, why would they? I will charge if I list on sites allowing an easy way of doing so.
I do not know why ABB did this, did not used to be the case, whenever I see something like this strikes me that they need to employ somebody to oversee all these 'good ideas' and give them a reality check.
I know they get feedback, wonder why it is being ignored?
@David0I also have been scratching my head over how this policy came about, and how it is that it has not been revised / adjusted. At this point, given Airbnb is reportedly gearing up to go public, I have to wonder if policies such as this are designed to encourage United States hosts who are traditional Airbnb hosts, and not hotel-like hosts, to throw up their hands and leave in exasperation because their legitimate needs and rights as hosts and home owners are being trampled upon in favor of corporate policies that are geared toward commercial operations.
Even if that is NOT their intention, it is having the same effect, because, like you, I ask myself why other booking channels that my rental occassionally receives guests through has no policies regarding Emotional Support Animals. Certainly, these other booking channels do not write policies that imply ESAs are to be treated in the same manner as an ADA service animal. And these companies likely are not legally ignorant, given they, like Airbnb, are running huge international operations.
Airbnb has always been my favorite booking site - we really love the community spirit - but this is my personal home I am sharing (i.e., a Cottage attached to my dwelling via a breezeway) and I don't like this feeling of being forced to do something that makes no sense and is not required by law. No other booking channel does this to us host / owners.
Could it be that this particular policy is driven by uber-liberal understandings of social justice, whereby the guest is the potential 'victim' and the host is the potential (discriminatory) 'aggressor' who needs to be condemned and chastised (e.g., reprimanded and fined and deprived of super host status for a year, like the one host shared, above)? Given I lived and worked in San Francisco at one time, and taught at a very liberal University (on the topics of Social Justice and Diversity Awareness / Sensitivity, no less), I do get the sense that it is an uber-liberal stance (which includes a large dose of self-righteousness and judgement toward others who are not viewed as being 'politically correct' and sensitive to social justic issues) which is fueling this not only non-sensical, but genuinely potentially dangerous, policy on ESAs.
My wife is a marriage and family therapist and we are both animal lovers. We still in-fact do not think it is fair to put this rule on the host nor the guests that follow. I agree with the original post and this is a policy we should fight.