HUD Notice Seeks to Clarify Questions Regarding Service Animals and Housing Discrimination Against the Disabled

Millions of Americans with a range of disabilities and health conditions rely on assistance animals for their well-being and for navigating the challenges and activities of daily life. But such an animal may present challenges when its owner faces housing policies that forbid residents from having animals in their homes or apartments.

This conflict between the rights of those with disabilities and the obligations of real estate property owners not to discriminate against such individuals can lead to confusion, conflict, and hardship. That is why the U.S. Department of Housing and Urban Development (HUD), the federal agency charged with enforcing the Fair Housing Act (FHA), recently issued an Assistance Animal Notice that attempts to clarify how housing providers can comply with the FHA when assessing an existing or prospective resident’s request to have an animal in their dwelling to provide them with assistance because of a disability.

The notice includes a set of best practices for housing providers to ensure compliance with the FHA when assessing requests for reasonable accommodations to keep animals in their housing, including the information that a housing provider may need to know from a health care professional about an individual’s need for the animal.

“Reasonable Accommodation” Under the FHA

The Fair Housing Act prohibits discrimination in housing, including discrimination against individuals with disabilities, which the law defines as physical or mental impairments that substantially limit at least one major life activity. The law protects the rights of such individuals to equal housing opportunities by requiring housing providers to make “reasonable accommodations” to facilitate the person’s ability to live in the dwelling.

In the context of service animals, that reasonable accommodation would usually consist of an exception to any “no pets” policies or other impediments that would stand in the way of allowing a service animal to live with its disabled owner. As HUD points out, however, assistance animals are not actually “pets.” Rather, they are “animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.” While dogs are the only species that qualify as “service animals,” other animals can be assistance animals for which reasonable accommodation is needed.

When a Disability Is Not Readily Apparent, What Can Landlords Ask About a Person’s Condition and Needs?

Sadly, however, it is not unheard of for non-disabled individuals to claim that their pets are needed service or assistance animals so that they can bring their pets with them into restaurants, on airplanes, or into their rented homes. Similarly, people have claimed that unique animals not commonly kept as household pets are needed assistance animals when they are not actually so.

For landlords and property owners, this kind of deceptive activity creates understandable suspicion when a person who does not have a readily apparent disability requests that the owner makes a reasonable accommodation and allows their purported assistance animal (of whatever species) to live with them, no pets policy notwithstanding.

The HUD notice contains a specific list of questions property owners can or should ask when they receive a request for a reasonable accommodation related to a service or assistance animal. This includes reasonable requests for information or documentation confirming both the person’s disability and their need for an assistance animal because of that claimed disability. The notice also discusses what property owners must do once they confirm the individual’s condition and needs and the extent of accommodation that they need to make.

All landlords, as well as existing or future tenants who have disabilities and rely on service/assistance animals, should review the HUD guidance so that they fully understand their rights and responsibilities.

If you have questions about service and assistance animals, housing discrimination, or the rights of individuals with disabilities with regard to housing, please contact the Real Estate Practice Group at Kreis Enderle today to discuss your concerns.