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.