Robbins: What the law says about service and emotional support animals

If you have been in the valley for any length of time, you may have noticed that there are a lot of property managers and a lot of property management companies. Little wonder, considering the significant proportion of second home and absentee homeowners, many of whom don’t mind making a little cash by renting out their properties when they are not in residence.

You may have noticed, too, how the Eagle River Valley loves its dogs. Cats, and especially dogs, are everywhere, whether they are locals’ dogs or visitors’.  Not so much, though, with miniature horses, but we’ll come back to that in just a sec.

Many second homeowners, while eager to rent out their properties when they might otherwise sit vacant, welcome guests of the human variety but blanche at the prospect of opening their doors to guests of the four-legged kind. What then, when, as is increasingly common, potential guests claim that the owner/property manager is obliged under law to rent the property to them and their service or emotional support animal?

There are a couple of laws and distinctions to consider.

First, a service animal is different and distinct from an emotional support animal. Second, the two federal laws in play are the Americans with Disabilities Act and the Fair Housing Act. 

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Under the ADA, it is unlawful to refuse to allow a “service animal” in a place of public accommodation. The ADA’s definition of public accommodation includes short-term lodging rentals. However, the ADA narrowly defines a “service animal” to include dogs and miniature horses (no, really!) that have been “individually trained to do work or perform tasks for the benefit of an individual with a disability.” It excludes animals that provide emotional support.

It is not absolutely settled if the Fair Housing Act applies to short-term vacation rentals, but the argument is compelling that it does not. The Fair Housing Act prohibits housing providers from refusing to make reasonable accommodations that a person with a disability needs to have equal opportunity to enjoy and use a dwelling.  

Neither the Fair Housing Act itself nor the case law interpreting it says it applies to short-term vacation rentals. The Fair Housing Act applies to “dwellings” which it defines as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” The argument, reasonably then, is that a short-term rental is not a “residence” as contemplated under the act, but is, instead, more like a place where a transient visitor or sojourner can temporarily lay or rest his or her head.

In determining whether a property is a “dwelling” under the Fair Housing Act, courts consider factors including (1) the extent to which occupants treat the property like their own home; (2) the length of time the occupant lives in the property; (3) the intent of the occupant to return to the property; (4) the presence or 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. Under this matrix, courts in several jurisdictions have held that hotels, bed-and-breakfasts, and the like are not dwellings to which the Fair Housing Act applies.

Based on the accumulated case law, there’s a strong argument that the Fair Housing Act does not apply to short-term vacation rentals, such as those found in the Vail Valley. These are short-term rentals for vacationers where patrons stay temporarily. This conclusion is consistent with VRBO’s policy, which applies the ADA standard for “service animals” but not the Fair Housing Act “assistance animal” standard.

Colorado’s Anti-Discrimination Act may also come into play. It requires reasonable accommodations for assistance animals and applies to “housing,” which it broadly defines. For implementing Colorado’s Anti-Discrimination Act housing provisions, the Colorado Civil Rights Division provides that it is “substantially equivalent” to the provisions of the Fair Housing Act. There is no existing case law on whether Colorado’s Anti-Discrimination Act applies to short-term vacation rentals; however, it is likely a court would conduct the same analysis as under the Fair Housing Act, so the above Fair Housing Actanalysis would equally apply.

The bottom line is this: Although it is not entirely settled, because the ADA does not cover emotional support animals, and because the property is a short-term vacation rental, it is unlikely the Fair Housing Act applies at all. Accordingly, a property manager may likely exclude a potential renter claiming the right to a short-term rental for the renter and his or her emotional support animal. However, under the ADA, a service animal is different and a potential renter with a service animal (specially trained dog or miniature horse) must be reasonably accommodated.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.