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.

One common question from landlords and property managers is whether they are permitted to request supporting information from tenants who have made an accommodation request under the federal Fair Housing Act.  The stakes for owners and property managers here are high—a single misstep can lead to a costly discrimination claim.

Thankfully, HUD—the Department of Housing and Urban Development —has given some pretty clear guidance on this issue.  Generally speaking, the inquiries that you may make—and the verifying information that you may require—depends on the degree to which the requester’s disability or the disability-related need for the accommodation is either obvious or known.  The following is an overview of the guidance that HUD has provided regarding responding to a reasonable accommodation request:

  • If the requester’s disability is obvious, or known to you, and the need for the accommodation is also readily apparent or known, then you may not request any additional information about the disability or the disability-related need for the accommodation.  Example:  An applicant with an obvious vision impairment requests an accommodation to a property’s “no pets” policy to allow the applicant’s seeing eye dog in his unit. Here, you may not require the applicant to provide any additional information about the disability or the disability-related need for the accommodation.   
  • If the requester’s disability is known or readily apparent, but the need for the accommodation is not readily apparent or known, then you may request only information that is necessary to evaluate the disability-related need for the accommodation.  Example: An applicant who uses a wheelchair makes a reasonable accommodation request to allow an assistance dog in her unit even though the property has a “no pets” policy.  Here, even though the applicant’s disability is readily apparent, the need for the accommodation is not obvious—thus, you may ask the applicant to provide information about the disability-related need for the dog. 
  • If the requester’s disability is not obvious, then you may request reliable disability-related information that: 1) is necessary to verify that the requester has a disability within the meaning of the Fair Housing Act; 2) describes the needed accommodation; and 3) shows the relationship between the requester’s disability and the need for the requested accommodation.  This information can usually be obtained directly from the requester, or from a medical professional, peer support group, non-medical service agency, or other reliable third party.  Under most circumstances, an individual’s medical records or detailed information about the nature of a person’s disabilities will not be necessary.