May 2016Volume 7Number 2PDF icon PDF version (for best printing)

Assistance and service animals in the housing context

Both the federal Fair Housing Act1(FHA) and Title II of the Americans with Disabilities Act2 (ADA) require that certain housing providers reasonably accommodate people with disabilities who require animals to assist them in some manner related to their disability. While the FHA and the ADA have many similarities, the acts differ in significant ways and housing providers need to know the differences in order to comply with the law.3

What is “housing”?

The FHA covers nearly all types of housing, including privately-owned housing and federally assisted housing. Title II of the ADA applies to public entities that provide housing, like housing at state universities and other places of education. Sometimes the FHA and the ADA overlap (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), in which case the housing provider must meet its obligations under the reasonable accommodation standard of the FHA and the service animal provisions of the ADA.4

What type of animal is covered by the acts?

The FHA and HUD often use the term “assistance animal.” An assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Courts are divided on the issue of whether an animal must be specially trained in order to qualify as a reasonable accommodation under the FHA.5 The better view appears to be that the FHA does not require that the assistance animal be individually trained or certified. An assistance animal is not limited to aparticular type or breed of animal. The ADA uses the term “service animal.” In contrast to the FHA, the term is limited to a dog or a miniature horse, the animal has to be individually trained to do work or perform tasks for the benefit of the individual with the disability, and emotional support animals are not service animals.6

What type of discrimination occurs?

HUD reports that the most common disability-related complaint it receives involves assistance animals - the applicant or tenant asks that the landlord accommodate her disability by allowing her to have an assistance animal despite the landlord’s “no pet” policy, charges the lessee a fee for the ability to have the animal in the housing unit, or requires special identification or a certificate that the animal is an assistance animal. “No pet” policies cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal or a service animal because of the disability. The request for a reasonable accommodation may not be unreasonably denied, conditioned on payment of a fee or deposit or other terms and conditions applied to applicants or residents with pets, and a response to an accommodation request may not be unreasonably delayed.

When is an accommodation in order?

In order for a requested accommodation to qualify as a reasonable accommodation, the requester must 1) have a disability and 2) the accommodation must be necessary to afford a person with the disability an equal opportunity to use and enjoy the dwelling. Under the FHA and the ADA, housing providers are to evaluate the request to possess the animal in a dwelling using the general principles applicable to all reasonable accommodation requests.

What may the landlord ask when a reasonable accommodation is requested?

Under the FHA, the housing provider may ask individuals whose disabilities are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for the assistance animal. There must be an identifiable relationship, or nexus, between the function the assistance animal provides and the disability. The landlord cannot ask an obviously blind person who uses a harnessed guide dog if she is disabled and why she needs the dog. In contrast, if the person has a psychiatric condition and seeks the accommodation for an assistance animal that provides him with emotional support, the landlord can ask the person to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates at least one of the identified symptoms or effects of the existing disability. A housing provider may not ask an applicant or tenant to provide access to medical records or medical providers and may not ask for detailed or extensive information or documentation of a person’s physical or mental impairment. Questions a housing provider can ask under the ADA are more limited. The housing provider 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? Here, too, if the disability and the work of the service animal is obvious, these questions may not be asked.

In cases where the FHA and the ADA apply, the housing provider should apply the ADA service animal test first in order to avoid possible ADA violations. This is because the permitted inquiries under the ADA are narrower than those allowed under the FHA. If the animal meets the test for a “service animal” (a dog or miniature horse) but the animal is, for example, a cat, the provider should allow the animal to live in the housing unit and accompany the individual with a disability to all areas of the facility where persons normally are allowed to go, unless 1) the animal is out of control and the 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 that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies. If the animal does not meet the ADA service animal test, the provider should apply the FHA test.

What protections does the housing provider have?

A request for accommodation may be denied if allowing the animal access to the property would impose an undue financial and administrative burden on, or fundamentally would alter the nature of, the housing provider’s services. The request also may be denied if the specific assistance animal poses a direct threat to the health or safety of others that cannot be reduced by another reasonable accommodation, or the animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.7

What about breed, size, and weight restrictions?

These restrictions are not allowed. Breed restrictions, for example, no pit bulls, generally may not be applied. A determination that the animal poses a direct threat of harm or substantial physical damage must be based on an individualized assessment, not on mere speculation.8 In his June 12, 2006 HUD memorandum, regarding “Insurance Policy Restrictions as a Defense for Refusals to Make a Reasonable Accommodation,” Deputy Assistant Secretary for Enforcement and Programs Bryan Greene9 stated that if a housing provider’s insurance carrier would cancel, substantially increase the costs of the policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the provider. However, the defense likely will fail unless the provider can substantiate the defense and show that it tried to find comparable insurance without the restriction.

Beware of companies that offer certifications and registrations of animals

There is no federal agency that regulates assistance or service animal certification. As stated above, certification that the animal mitigates the symptoms of a person’s disability is not required. There are several businesses selling certifications, registrations, and IDs over the Internet. All you need to do to receive these products is pay a fee. The dog never is tested and the disability never is verified. In contrast, legitimate training entities exist which issue certifications and IDs upon completion of the animal’s disability-related training. Know the difference.


 

Margherita M. Albarello of Park Ridge’s Di Monte & Lizak concentrates her practice in management- and employee-side employment law.

 

1. Title VIII of the Civil Rights Act of 1968, as amended (42 U.S.C. §§3601-3631). The Department of Justice (DOJ) and the Department of Housing and Urban Developments (HUD) jointly are responsible for enforcing the FHA, which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.

2. 42 U.S.C. §12101 et seq.

3. Housing providers that receive federal financial assistance also are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. Although Section 504 imposes greater obligations than the FHA (e.g., providing and paying for reasonable accommodations that involve structural modifications to units or public and common areas), the FHA reasonable accommodation principles generally apply to requests for reasonable accommodations to rules, policies, practices, and services under Section 504. The Illinois Human Rights Act, 775 ILCS 5/3 et seq., also requires that certain housing providers reasonably accommodate people with disabilities who require animals to assist them in some manner related to their disability. HUD has determined that the fair housing law that the Illinois Department of Human Rights enforces is substantially equivalent to the FHA.

4. The FHA, ADA, and Rehabilitation Act impose similar anti-discrimination standards for persons who suffer from disabilities and, due to their similarities, can be analyzed in tandem, with the exception of the differing definition of assistance v. service animal. See Ayyad-Ramallo v. Marine Terrace Associates LLC, 2014 WL 2993448 (E.D.N.Y. July 2, 2014).

5. See Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028, 1034-35 (D. No. Dk. 2011) (special training not required); Ayyad-Ramallo v. Marine Terrace Associates LLC, 2014 WL 2993448 (E.D.N.Y. July 2, 2014) (special training required).

6. 28 CFR §36.104 (“[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of [the service animal] definition.”).

7. 28 CFR §§35.136; 28 CFR 36.302(c).

8. See Wirtz Realty Corporation v. Freund, 308 Ill.App.3d 866, 873-75 (1st Dist. 1999).

9. www.fairhousing.com/include/media/pdf/insuranceguidance.pdf.

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