ADA

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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.

I had an interesting situation come up just the other day—a resident at an apartment community claimed that the community pool was violating housing discrimination laws by not being fully accessible to individuals with disabilities.  Obviously, any time a resident threatens a property with being “out of compliance with housing laws,” my heart rate jumps considerably.  However, it turns out that this situation stemmed from a common misconception regarding the separate requirements of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).

The question at issue was whether an apartment community pool was required to have a “pool lift.”  The particular resident was alleging that, because the complex did not have a pool lift, the property was not in compliance with the ADA.  The fact of the matter, however, is that the ADA only applies to the areas of the apartment community that are open to the general public—which is typically only a select few areas of the property.  But here, whether or not the ADA is applicable is extremely important because, to the extent that the ADA applies, your pool must have either a pool lift or a sloped entry (although, as a caveat, the rules regarding your obligations are slightly different depending on when your pool was built).  And while the Fair Housing Act Design and Construction Guidelines require that the area around the pool be accessible, there is no set requirement for access into the pool itself (only to the edge).

So how do you know whether the ADA applies to your pool?  Well, ask yourself—is the public allowed to use the pool?  Or is it restricted to the property’s residents?  To the extent that the pool is solely for the use of the residents, then it is a pretty safe bet that the ADA does not apply.  But if you allow the general public to use the pool, or if you sell pool memberships to the general public, then there is a good chance that the ADA does apply.  So how about all of the gray areas, like allowing guests at the pool, or permitting the local high school to host swim meets at the pool?  Unfortunately, like most issues with the ADA and the FHA, there is no clear rule and the safest course of action is to contact an attorney.