Hot on the Hotline: Emotional support animals and following directions of the seller

Writen by Anneliese Fierstos |

Published: June 24, 2021 |

Reading Time: 4 min

Anneliese FierstosAnneliese Fierstos
Illinois REALTORS® Legal Hotline Attorney

Requests for Accommodation under the Illinois Assistance Animal Integrity Act

I am the listing agent for a property that has a “no pets allowed” policy, and received an application from an individual requesting allowance for their emotional support animal. May I deny that application because it is an emotional support animal and not a service animal?

Generally speaking, the answer is “no”, you must not deny on this basis. However, analysis is required. Many housing providers wish to deny  requests to accommodate an emotional support animal, arguing it is not a legitimate request, and that the applicant is abusing the law just to have a pet. The first thing to remember in dealing with these applications is that the Illinois Assistance Animal Integrity Act  (“the Act”) includes emotional support animals under the definition of “assistance animal” and these animals are NOT considered pets. They are an accommodation for a disability, so consider the following points:

  • A housing provider MAY NOT require a pet security deposit for any assistance animal, including an emotional support animal.
  • A housing provider in receipt of request for an accommodation of an assistance animal MAY ask for supporting documentation from the applicant about the disability and disability-related need for the animal.
  • A housing provider who receives a request for more than one assistance animal may request documentation for each animal, unless the need for the animal is apparent.
  • Documentation from an individual requesting an accommodation shall:
    • Be in writing;
    • Be made by a person with whom applicant is in a therapeutic relationship (as that term is defined by the Act).

If a housing provider is not satisfied with the documentation that is provided by an applicant, they should consult with their own legal counsel about how to proceed. The Act does allow for a housing provider to require additional supporting documentation of a person’s disability or need for the assistance animal, but only, if the initial documentation does not satisfy the criteria above.

Following Directions of the Seller

The legal hotline has been fielding many questions about when a listing agent should or should not follow directions from a seller. Here are two examples:

May a seller instruct the listing agent to hold offers until a pre-set time even though the Real Estate License Act (RELA) and the Code of Ethics provides that REALTORS® shall submit offers as quickly as possible.

Yes. Both RELA and the REALTOR ® Code of Ethics include language that makes the timing requirement clearer.

  • RELA Section 15-15 (a)(2)(B) provides that licensees shall timely present all offers to and from the client, unless the client has waived this duty.
  • RELA Section 15-15 (a)(2)(E) provides that a listing broker can obey specific directions from a client that are not otherwise contrary to public policy or illegal.

Best practice would be to get written directions from the seller about how they want a multiple-offer situation to be handled. Listing brokers should consider educating their sellers on the best way to handle multiple offers  and have a plan in place before the property is listed and the situation arises.

My seller has instructed me to terminate a contract on their home that has made it through attorney review in order to allow them to accept a higher offer. May I do that?

In a situation like this, a listing agent MUST NOT offer any legal advice to the seller (which would be considered the unauthorized practice of law), but they should encourage the seller to consult with their legal counsel before terminating the first contract. The listing agent can rely on their own education and experience to explain generally to the seller the potential issues that may occur in cancelling contract number one, which may include incurring significant legal fees if the first buyer tries to enforce the contract and/or files suit for breach. However, while terminating the contract might constitute a breach of contract, it is not illegal. Therefore, under Section 15-15 (a)(2)(E), the listing broker could obey specific directions from the seller to notify buyer or buyer’s agent of the intent to terminate the contract. The broker should be sure to document the file that legal advice was recommended, and that the broker is following seller’s specific and written direction (include seller’s written direction in the file).

About the writer: Anneliese Fierstos is the Illinois REALTORS® Legal Hotline Attorney.

Your Illinois REALTORS® Legal Team