Monthly Archives: May 2018

Emotional Support Animals, Public Accommodation, Service Animals

How do Texas Law and Federal Law Regard the Issue of Service Animals in Commercial Lease Situations?

  • People with disabilities may bring their bona fide service animals to all public accommodations
  • Owners of public accommodations are not required to allow “emotional support animals”, only service animals that meet the definition
  • Refusing to allow a service animal into a public accommodation can result in penalties.
  • Falsely claiming that an animal is a service animal can also result in penalties
  • Public accommodations may only ask questions about your service animal’s particular task training
Under Texas law and the federal Americans with Disabilities Act (ADA), people with disabilities may bring their service animals to all public accommodations, such as government buildings, hotels, restaurants, stadiums, and stores. Both laws protect people in Texas who use service animals. The following contains information on which animals qualify as service animals and which public accommodations must allow them.

Service Animals Defined

Under Texas’s Human Resources Code, a service animal or an assistance animal is a dog (and in some instances, a miniature horse) that is specially trained to assist someone with a disability and is actually used by a person with a disability. These conditions count as a disability:

  • deafness or another hearing impairment
  • a visual impairment
  • a speech impairment
  • a mental disability
  • a physical disability
  • an intellectual or developmental disability
  • post-traumatic stress disorder, or
  • any health impairment for which the person needs special ambulatory services or devices.

Under the ADA, a service animal is a dog (or, in some cases a miniature horse) that is individually trained to perform tasks or do work for the benefit of a person with a disability. The tasks or work the animal does must be directly related to the person’s disability.

Neither law covers pets or what some call “emotional support animals”: animals that provide a sense of safety, companionship, and comfort to those with psychiatric or emotional disabilities or conditions. Although these animals often have therapeutic benefits, they are not specially trained to do particular types of work for their owners. Under the ADA and Texas law, owners of public accommodations are not required to allow emotional support animals, only service animals that fit the definitions above. (Psychiatric service dogs are, however, covered by both Texas law and the ADA. These are dogs that are trained to provide services such as responding to an owner’s panic attack by initiating contact to comfort the owner or alerting an owner who is exercising poor judgment due to bipolar disorder that he or she is driving dangerously.)

What Counts as a Public Accommodation in Texas?

Texas law has a very broad definition of public accommodations. It includes everything from government buildings and public streets, sidewalks, and transportation to restaurants, hotels, stores, offices, places for recreation and amusement, and any other place where members of the public are customarily invited.

Under the ADA, the definition of public accommodations is also very broad. It includes:

  • hotels and other lodging establishments
  • public transportation terminals, depots, and stations
    restaurants and other places that serve food and drink
  • sales or rental establishments
  • service establishments
  • any place of public gathering, such as an auditorium or convention center
  • places of entertainment and exhibit, like theaters or sports stadiums
  • gyms, bowling alleys, and other places of exercise or recreation
    recreational facilities, such as zoos and parks
  • libraries, museums, and other places where items are collected or displayed publicly
  • educational institutions, and
  • social service centers.

You may bring your service animal to any place that appears on either of these lists.

Rules for a Service Animal in Texas

Under Texas law, no public accommodation may make demands or ask questions about your service animal’s certification or qualifications, except to determine what type of assistance the animal provides. If your disability is not apparent, the establishment may ask whether your animal is a service animal and what work it is trained to do for you.

The ADA allows public accommodations to exclude a service animal that poses a direct threat to the health and safety of others. For example, if your dog is dangerously aggressive towards other patrons, it can be kicked out.

You cannot be charged extra to bring your service animal on public transportation. However, you can be required to pay for any damage your animal causes.

If you use a service animal to assist you with travel or auditory awareness, the animal must be in a harness and leash.

There are penalties for refusing to allow a service animal in a public accommodation. Texas law also imposes penalties on those who falsely claim or imply (for example, by using a service animal harness) that their animal is a service animal, when it is not.

Tom Turet is an AV Preeminent-rated attorney, board certified in Commercial Real Estate Law. Tom has practiced real estate, title, energy, corporate and mortgage lending law for over 38 years, with extensive experience as a fee office title attorney and advisor to banks, mortgage companies and other lending institutions.

Contracts, Deeds, Legal Documents, Real Estate Law, Wills

Life Estate, Rights of Survivorship and Transfer on Death Deeds: Which is Right for You?

  • Current warranty deeds are not necessarily the best choice to avoid probate.
  • Dying without a will, while holding real estate, leads to much complexity and unintended consequences.
  • A life estate deed allows owner to maintain possession, but the transaction is final and cannot be reversed without consent.
  • A Right of Survivorship can avoid probate, but cannot be reversed without consent and may lead to loss of valuable tax exemptions.
  • A Transfer on Death Deed allows for the execution of a present document whereby an owner can maintain possession and tax exemptions, avoid future probate, and retain the right to rescind at any time before death.
In today’s world of online searches for quick and economical legal solutions, consumers are often faced with a daunting task of attempting to decipher what document may best fit their specific situation and needs. Online computerized providers of generic legal forms are simply incapable of asking all the pertinent questions needed to accurately assess a situation. As a result, consumers often select, fill out and file legal documents that not only fail to meet their objectives, but cause more harm than good.

Such is the case in deciding what document may be best to transfer title to real estate when an owner’s death is on the horizon. Certainly there is no “one-size fits all” solution, as the parties’ actual intent in desiring a conveyance must be evaluated to narrow the choices. A key example: If a party’s intent in transferring ownership of real estate is driven not by the current need or desire to sell to another, but more the desire to avoid the perceived cost and expense of a future probate of the current owner’s estate after death, then a common warranty deed or quitclaim deed is probably not the best choice of documents. Rather, the parties should consider several options:

No conveyance – If a property owner dies while still holding title to the real estate, then title will pass either to the beneficiaries of the last will and testament, if there is one, or by operation of Texas law (intestate succession). While the probate process in Texas is not relatively expensive, many parties mistakenly assume probate should be avoided, and search for other mechanisms. Moreover, passing away without naming beneficiaries in a valid will leads to all kinds of complexities and unforeseen/unintended future ownership consequences.

Present Conveyance – The present conveyance by warranty deed would serve to immediately transfer title to the grantee; the property would no longer be owned by the grantor. As such, the property may lose certain valuable tax exemptions (such as homestead and over-65 exemptions), and the grantor could no longer legally control the future of the property. Since the deal is done, the grantor cannot later change his or her mind and leave the property to some other loved one or beneficiary.

Life Estate Deed, or a Deed Reserving a Life Estate – Under this type of instrument, a property owner may presently convey the property to his/her intended beneficiaries, but reserve the right to continue living on the property until death. This option serves to avoid future probate upon death (at least as to the real estate), give the intended beneficiary some peace of mind that they have secured title to the property, but allows the grantor to retain possession, along with any tax exemptions they may qualify for in most counties. The drawback is that in conveying title now, the grantor cannot change their mind and “undo” the transaction later without the consent of the beneficiaries.

Joint Tenancy with Right of Survivorship – Under this mechanism, an owner may add another person to the title, and allow the survivor of either owner to take full title upon death of the other without the need for probate. But not all title companies will insure properties subject to these type deeds without involvement of the probate court, and again, the grantor cannot change their mind and “undo” the transaction later without the consent of the grantee. Further, the amount of tax exemptions may be reduced due to the addition of another owner, who may not qualify for the same exemptions.

Which leads now to a new option, known as the Texas Transfer on Death Deed – This new type of deed allows a present property owner to convey an interest now to an intended beneficiary and thereby avoid probate upon their death; but in the meantime, the grantor can continue to occupy the property, qualify for present tax exemptions, and even change their mind and rescind (cancel) the deed at any time prior to death. The grantor may also sell their property and keep the proceeds without the joinder of the grantee. Because of the increased flexibility this instrument affords, the Transfer on Death Deed should prove to be a very popular instrument in Texas, one that families should consider as part of their overall estate planning efforts.

Jeffrey A. Rattikin is an AV Pre-eminent rated attorney, Board -Certified in Residential Real Estate Law by the Texas Board of Legal Specialization. Mr. Rattikin has provided transactional legal services to clients across the State of Texas for over 28 years, emphasizing real estate, business and title law. Mr. Rattikin continues to define new legal frontiers through his incorporation of technology to enhance the attorney-client experience, as evidenced by his firm’s innovative websites www.rattikinlaw.com and www.texaslegaldocs.com.