Earlier this year, HUD issued long-awaited
guidance to housing providers on assessing reasonable accommodation requests
for assistance animals.
landlords and their
agents, are required to provide a change to a rule or policy when such an
accommodation is necessary to afford a disabled person equal opportunity to use
or enjoy their housing. Allowing an assistance animal in a “no pets” building
is a common example. In recent years, requests for assistance animals have
increased and boards and managers frequently inquire, what documentation can I
request? Are online certificates acceptable documentation of a disability
and/or disability-related need? What types of animals must we allow? Ferrets?
Pitbulls?
In recent years, requests for assistance
animals have increased and boards and managers frequently inquire, what
documentation can I request?
Assessing a Request
The guidance from HUD is framed around 8
questions intended to provide a roadmap for evaluating a request for a
reasonable accommodation for an assistance animal, which includes both service
animals and other support animals.
To begin, HUD starts with questions to
determine if the animal is a service animal: a dog that is trained for the
benefit of an individual with a disability. (Questions 1-3). Service animals
are protected not only under Fair Housing Laws, but also allowed entry into
places of public accommodation under the Americans with Disabilities Act (ADA).
More often, boards and managers receive
requests concerning a support animal/comfort animal/companion animal (or other
type of assistance animal). We, therefore, turn and dive more deeply into the
steps (Questions 4-8) and the guidance HUD offers in evaluating those requests:
The Ask.
There must be a request for an
accommodation.
HUD’s guidance includes a publication of
information for residents seeking an accommodation for assistance animals that
should be available to residents, but boards and managers cannot mandate that
residents use it to make a request. As we have advised boards and managers in
the past, you cannot mandate the use of any specific form. A request does not
have to be in writing; nor must it include the words “reasonable
accommodation.” It can even be made by someone other than the individual
needing the accommodation. Furthermore, the request can be made at any time:
before or after move-in, before or after acquiring the assistance animal,
before or after a notice of violating a pet-restriction is issued (although the
last one will incur a certain presumption against the requestor).
Disability.
The resident for whom the request is being
made must have a disability and a disability-related need for the
accommodation.
• Does the person have an observable
disability or does the housing provider (or agent making the determination for
the housing provider) already have information giving them reason to believe
that the person has a disability? (Question 5).
• If no, has the person requesting the
accommodation provided information that reasonable supports that the person
seeking the accommodation has a disability and/or disability-related need?
(Question 6).
• If yes to either of the above bullets,
has the person requesting the accommodation provided information which
reasonably supports that the animal does work, performs tasks, provides
assistance and/or provides therapeutic emotion support with respect to the
individual’s disability? (Question 7).
A common source of frustration has been
determining what documentation of a disability and disability-related need is
sufficient and reliable. In particular, the proliferation of internet
certificates has drawn ire and skepticism. HUD took note and has stated that
documentation from the internet (like websites that sell certificates and
registrations) is not, by itself, sufficient to reliably establish that an
individual has a non-observable disability or disability-related need for an
assistance animal. A health care professional, with personal knowledge of the
individual, however, could provide sufficiently reliable documentation to
establish a disability or disability-related need, even if the health services
are delivered remotely, including over the internet. The key question here is
does the internet documentation (or any documentation for that matter) provide
an indication that there has been a personal assessment of the disability or
disability-related need such that is sufficiently reliable. When it comes to an
online certificate mill, HUD’s guidance helps us answer that question, “no.”
As always, before denying a reasonable
accommodation due to lack of information about an individual’s disability or
disability-related need for an assistance animal, boards and managers should
engage in a good-faith dialogue with resident, including pointing them to HUD
guidance for individuals on making a request.
Excessive Burden. While cats and dogs are
the most common type of animal for which a request is made, we know board and
managers have seen the gamut of requests from monkeys to snakes to ferrets and
every creature in between. What if the proposed animal poses a direct threat,
danger or excessive burden? The new guidance from HUD separates what it terms
“animals commonly kept in households” and “unique animals”
• Is the animal commonly kept in
households? (Question 8)
If the animal is not one that is commonly
kept in households and is a “unique animal,” then HUD states that requestor has
the substantial burden of demonstrating a disability-related therapeutic need
for the specific animal or type of animal. Reptiles (other than turtles),
barnyard animals, monkeys, kangaroos, and other non-domesticated animals fall
into the category of “unique animals.”
On a related note, another frequent
question is whether a board can charge a fee for the animal. The guidance in
this regard remains the same and clear: assistance animals are not pets and
residents cannot be charged a fee (or deposit). Charges for damages caused by
assistance animals are acceptable, provided that the damages are assessed in a
manner consistent with how they otherwise chargeable to a resident.
Bottom Line
This guidance, at long last, helps provide
some clarity on how to assess the reliability of internet documentation and
process unusual animal requests. That said, while the recent guidance is
helpful, we know questions about how to apply and assess accommodation requests
will persist given their highly fact-specific nature. If you have any questions
about a request you have received or how best to operationalize the latest
guidance from HUD into your board or management practice, contact us.
An
associate in the Boston and Braintree firm of Moriarty, Troyer & Malloy
LLC, Kate Brady possesses years of experience in condominium and real
estate litigation and recognized expertise in fair housing, affordable housing
and the myriad of statutes and regulations which apply. In her litigation
practice, Kate has handled complex transitional litigation including phasing
disputes, construction defect claims and related matters. Kate can be contacted
at kbrady@lawmtm.com.
