We frequently receive inquiries from condominium associations and landlords regarding the rights of unit owners or tenants to have service or assistance animals when the condominium documents or the lease specifically prohibit pets or certain types of pets. The question is and remains very fact-specific and every situation is different so you should definitely consult with an attorney before making any decisions or taking any actions. However, the US Department of Housing and Urban Development has recently issued long-awaited guidance for assessing whether a reasonable accommodation must be made for such animals.
On January 28, 2018, HUD issued FHEO-2020-01, a Notice on: “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.” (click here to review the Notice).
The Fair Housing Act prohibits discrimination in housing against individuals who have disabilities that affect a major life activity. The Act requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities that affect a major life activity an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful. A common reasonable accommodation is an exception to a no pet policy. A person with a disability that affects a major life activity may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it is not apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.
According to the HUD Notice, two threshold questions must be addressed when a unit owner or tenant asks for a companion animal:
Does the person seeking to use and live with the animal have a disability ” i.e., a physical or mental impairment that substantially limits one or more major life activities?
Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to question (1) or (2) is “no,” then the law does not require a modification of an existing “no pets” policy, and the reasonable accommodation request may be denied.
However, if the answer to these questions is “yes”, the association or landlord must modify or provide an exception to a “no pets” policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.
A request for companion animal also may be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. Breed, size, and weight limitations may not be applied to an assistance animal.
A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct ” not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit, those rules cannot be applied to companion animals.
An association or landlord cannot deny a reasonable accommodation request because they’re not certain whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. They may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.
If the disability is readily apparent or known but the disability-related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability-related need for an assistance animal. For example, the association or landlord may ask persons who are seeking a reasonable accommodation for an assistance animal to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
However, an association or landlord may not ask a tenant or applicant to provide documentation showing the disability or disability-related need for an assistance animal if the disability or disability-related need is readily apparent or already known to the provider.
A housing provider also may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.
The bottom line is that even with this new guidance the issue is complicated and poses many dangers for associations and landlords so you should always consult with an attorney before making any decisions or taking any actions.