As I have written about before, the rules regarding permissible inquiries in response to a Fair Housing Act accommodation request are complex and fraught with danger. Given this complexity, many housing providers are inclined to simply grant any accommodation request made by a resident with an apparent disability (such as a resident in a wheelchair).

Which leads me to an interesting scenario I heard about recently.  A resident’s ferret had gotten loose on the property and was terrorizing the neighbors.  I was understandably confused, given that I did not think that this particular apartment complex allowed ferrets (in light of their obvious man-eating propensities).  It turns out that this particular resident was in a wheelchair, and the landlord, despite the property’s policy strictly prohibiting ferrets, simply allowed him to have the ferret because the disabled resident requested it (without asking any further questions).

Accordingly, as a public service announcement, I wanted to remind everyone that there still must be a connection, or nexus, between a resident’s disability and the requested accommodation.  And if that connection is not obvious, you are permitted to request information verifying the disability-related need for the accommodation.  It’s only when the disability or the disability-related need is apparent that you are not allowed to request additional information (it makes sense if you think about—if you can plainly see it, there is no need for additional documentation regarding it).

So, if a resident with a vision impairment requests what is clearly a seeing eye dog, you should not request any further information.  But if a resident in a wheelchair requests that you allow him or her to have a ferret, you will probably want to ask for documentation verifying that there is a disability-related need for that ferret.

Part II: Applying Multiple Laws in Certain Areas of the Property

As discussed in the first part of this blog series, there are certain areas of a multifamily apartment community where both the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) apply.  Our last blog post focused on applying the ADA at those areas.  In this post, we will provide guidance on how to simultaneously apply both the FHA and ADA (with specific regard to animals).

As I mentioned previously, the Department of Justice (DOJ) has defined “service animal” under the ADA narrowly to only include dogs, and to specifically exclude emotional support animals.  Accordingly, when you are applying the ADA analysis at a public area of the property (such as the leasing office), only a dog can be considered a service animal.  The DOJ has also made clear, however, that housing providers may not use its definition of a service animal as a justification for reducing their FHA obligations, and that the revised ADA regulations do not change the reasonable accommodation analysis under the FHA.  And, as you know from my previous blog posts, unlike the ADA the FHA places no limits on what type of animal can serve as an assistance animal—nor does the FHA require that the animal receive any type of formal training.

Specifically, and as we have discussed several times before, under the FHA an individual with a disability has the right to have an assistance animal other than a dog if the animal qualifies as a necessary reasonable accommodation.  But, the good news for landlords is that they are permitted under the FHA to make more detailed inquiries to individuals with non-obvious disabilities who request reasonable accommodations.  In other words, the scope of questions that you can ask to verify the need for the animal under the FHA is much broader than it is under the ADA.

As such, you can see that there is a tension arising in matters where both the ADA and the FHA apply—such as situations involving animals and prospective tenants in the leasing office.   For example, if a prospect comes into a pet-free leasing office with an animal, are you allowed to make the detailed inquiries permitted under the FHA, or are you limited to the basic questions allowed under the ADA?

My advice, in situations where both the ADA and the FHA apply, is to apply the (stricter) ADA service animal test first.  To piggyback on the first part of this blog series and use the leasing office as an example, in a situation where an animal meets the ADA’s test for a service animal (a dog that is individually trained to do work or perform tasks), the animal must be permitted in the leasing office unless (1) the animal is out of control and its handler does not take effective action to control it; (2) the animal is not housebroken; or (3) the animal poses a direct threat to the health or safety of others.   If the animal does not meet the ADA’s service animal test, then the landlord should use the reasonable accommodation analysis under the FHA.  As a reminder, for non-obvious disabilities, a landlord is permitted under the FHA to require the individual to provide information that: (1) is necessary to verify that the individual meets the FHA’s definition of “disability” (substantially limits one or more major life activities); (2) describes the needed accommodation; and (3) shows the relationship between the individual’s disability and the need for the requested accommodation.  If there is sufficient verification of a disability and a disability-related need for the animal, then the prospect must be permitted to have the animal.

To put the interplay between the ADA and the FHA into perspective, you could hypothetically encounter a situation where a prospective tenant’s request to have a dog accompany him or her into a pet-free leasing office is denied under the ADA analysis because the dog is an emotional support animal, but permitted under the FHA because you have determined that there is a connection between the disability and the support the animal provides.



Part I:  Assistance Animals Under The ADA

As I wrote about recently, while the Fair Housing Act (FHA) applies to virtually all areas of a multifamily apartment community, the Americans with Disabilities Act (ADA) only applies to areas of the community open to the public—including, most notably, the leasing office.  Accordingly, all aspects of the ADA—including its provisions on service animals—apply to the leasing office.  And, generally speaking, most leasing offices that I’m familiar with do not allow animals.  In this blog post, I will provide guidance on how to deal with service animals under the ADA at the leasing office (or any other area of the property open to the public).  In Part Two, I will give an overview of how to apply both the FHA and ADA in areas of the property where both Acts apply.

The distinction between the FHA and the ADA—and the fact that the ADA applies to only a small area of the property—is important because the Department of Justice’s definition of service animal under the ADA includes only dogs, and specifically excludes emotional support animals.  For purposes of the ADA, “service animal” is defined narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  The DOJ regulations specify that the “provision of emotional support, well-being, comfort, or companionship do not constitute work or task for purposes of [the definition of the service animal].”  Thus, under the DOJ regulations, trained dogs are the only species of animal that may qualify as service animals under the ADA (note that there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals under the ADA.

It is also extremely important to note that under the ADA, you may only ask: (1) Is this a service animal that is required because of a disability; and (2) What work or tasks has the animal been trained to perform? These are the only two inquiries that an ADA-covered facility may make, even when the disability is not readily apparent—in fact, the foregoing inquiries may not be made when it is obvious that the animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or who has low vision).  Furthermore, an ADA-covered facility may not require documentation concerning the animal, such as proof that the animal has been certified, trained, or licensed as a service animal.

So, the bottom line is that if a prospect with a service dog enters the leasing office, you may only ask the two questions above, and you may only ask those questions if and only if the disability is non-apparent.  Obviously, this is very different from what you are permitted to ask under the Fair Housing Act, and it presents a conundrum in an area of the property where both Acts apply simultaneously.  Accordingly, in Part Two of this blog post, I will provide some guidance on how to proceed with service animals and assistance animals at the leasing office.

A recent U.S. Department of Housing and Urban Development (HUD) case caught my eye earlier this week, and made me realize that there was still some confusion over the distinction between “service animals” and “emotional support animals.”  To simplify matters, I generally advise my multifamily management and owner clients that, for purposes of the Fair Housing Act, there is no need to get bogged down in the nomenclature unnecessarily—just lump them all under the category of “assistance animals,” and follow your standard fair housing protocol.

It was a case out of Oklahoma that got me thinking about this issue.  HUD filed a Charge of Discrimination against the landlords of a rental property, alleging that they violated the Fair Housing Act by refusing to waive a $250 pet fee for an emotional support animal.  Based on the facts in the Charge, a veteran with PTSD apparently made a reasonable accommodation request for the landlords to waive the pet fee for his emotional support animal.  Although no details about the doctor’s letter were given, it appears that it was likely sufficient for the request.  However, the landlords seemed to be operating under the belief that pet fees only needed to be waived for service animals, and not emotional support animals.  Even though the complainant provided the landlords with multiple sources to the contrary, the landlords continued to refuse to waive the pet fee for the emotional support animal.

HUD has made it pretty clear that it believes that pet fees must be waived for both service animals and emotional support animals under the Fair Housing Act.  In fact, for purposes of the Fair Housing Act, HUD lumps emotional support animals, therapy/companion animals, and service animals under the umbrella term of “assistance animals.”  And HUD has explicitly stated that assistance animals under the Fair Housing Act are not required to have any individual training or certification (contrast this with the Americans with Disabilities Act, which requires that a service animal be a trained dog–or, oddly enough, a miniature horse).

So, the bottom-line for housing providers is that you should not be too focused on labels when you are considering an accommodation request for an assistance animal.  Simply stick to your standard procedures, and require verification where the disability and/or the disability-related need is not apparent — in fact, this is likely the one instance where the distinction between a service animal and an emotional support animal is relevant, since the disability and disability-related need for a service animal is likely to be more apparent (see my prior blog post “The Do’s and Don’ts of verifying RA Requests”).

And for Pete’s sake, unless you really have an ax to grind with HUD, do not charge a pet fee for any approved assistance animal!

As landlords and property managers, you walk a thin line with regard to accommodation requests involving assistance animals.  You obviously want to make sure that any tenant who needs an assistance animal is accommodated.  At the same time, you need to require enough verification to weed out anyone who is trying to take advantage of the Fair Housing Act.  As a fair housing attorney, I’m always curious about where to draw the line.  How much verification is too much?

That’s why a recent complaint filed by HUD caught my attention.  HUD challenged the reasonable accommodation and pet policies of a housing provider as having “impose[d] mandatory burdensome conditions on individuals with disabilities who request animal assistance.”  The landlord required tenants to fill out several forms, including an accommodation request form and a doctor’s prescription form.  So what bothered HUD?  Apparently, it was the doctor’s prescription form, which required the doctor to accept liability for any damage or injury caused by the animal in question.

As I am sure you can imagine, each of the doctors approached in the case above refused to sign any such form.  This requirement was seen by HUD as a violation of the Act on the basis of discrimination, given that the failure of the tenant to secure a doctor’s signature resulted in the denial of the request.

So what should you do?

Other than the guidelines I discussed in a previous post, do not, I repeat, do not attempt to assign liability to the prescribing doctor in a tenant’s request for an assistance animal. This action will likely be considered discriminatory under the Act, and could open you up to enforcement for an FHA violation.  Keep in mind that this doctor requirement is just one example of a recent burdensome requirement, and if any part of your reasonable accommodation process may be interpreted as placing an excessive burden on the requesting tenant, it is worth looking at.

Landlords and property managers often wonder whether they can deny a resident’s fair housing accommodation request for an assistance animal because the animal is on a “restricted breeds” list.  The short answer is “no.”  Or, perhaps more accurately, “probably not.”

The federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq., requires that properties make reasonable accommodations in rules, policies, practices, or services when those accommodations are necessary to afford people with disabilities the equal opportunity to use and enjoy an apartment community.  Consequently, a property with a “no pets” policy must make an exception to that policy and grant a reasonable accommodation request to allow an assistance animal at the property when: 1) the resident making the request has a disability within the meaning of the Fair Housing Act; and 2) the resident making the request has a disability-related need for the assistance animal.

But wait, you say!  What if a resident is requesting an emotional support pit bull, and my community has a restricted breeds policy that prohibits dangerous breeds, such as pit bulls?  May the request be denied as “unreasonable”?  Put simply, probably not.  HUD (the U.S. Department of Housing and Urban Development, the agency charged with enforcing the Fair Housing Act) has made clear that “[b]reed, size, and weight limitations may not be applied to an assistance animal.”

But what about the threat that a dangerous breed, such as a pit bull, might pose?  According to HUD, any determination that an assistance animal poses a direct threat to the safety of the community (or would cause substantial physical damage to property) must be based on an individualized assessment of the specific animal at issue.  In other words, housing providers are not allowed to deny an assistance animal request simply because they believe that particular breeds—such as pit bulls—are dangerous.  Instead, the denial must be based on objective evidence about the specific animal’s actual conduct.  Therefore, consider requiring a certification stating that the animal does not have any aggressive, dangerous, or vicious propensities.