How To Handle Requests For Assistance Animals

This month's issue of Fair Housing Coach focuses on how to handle requests for assistance animals. Although communities generally are free to set rules restricting the presence or type of animals allowed on their property, fair housing law may require you to make an exception to those rules to allow an assistance animal as a reasonable accommodation for an individual with a disability.

The rules on reasonable accommodation requests in conventional housing have been in place for some time, but there's a lot of confusion about assistance animals, says fair housing expert Anne Sadovsky.

Much of it stems from the growing variety of the functions performed by—and the species of—assistance animals. While you may be accustomed to a prospect or resident who uses a guide dog due to a visual impairment, dogs have been trained to perform all sorts of tasks—such as assisting individuals with hearing impairments to alert them to ringing telephones or doorbells. Some animals have spontaneously demonstrated an ability to detect impending problems, such as seizures. And the functions performed by assistance animals have expanded beyond performing specific tasks to providing emotional support to individuals with disabilities. Meanwhile, the types of assistance animals have expanded well beyond dogs to include a wide variety of species—such as cats, birds, chimps, monkeys, pigs, and miniature horses, just to name a few.

Fair housing cases most often arise when communities have policies banning all animals from the premises. But even in communities that allow animals, you may be called upon to make exceptions to size or weight limits or restrictions about animals in common areas. And given the changes in the types and roles of assistance animals, you may be unsure about how to handle a request for an assistance animal if, for example, a resident does not have an obvious disability or the request involves an exotic species.

In this month's issue, we'll go over the fair housing rules regarding assistance animals. We'll break it down by suggesting five rules for evaluating requests by individuals with disabilities related to assistance animals. Finally, you can take the COACH'S QUIZ to see how much you have learned.

COACH'S TIP: Last year, HUD adopted final regulations regarding pet ownership in federally assisted housing for the elderly and disabled to conform to existing rules governing public housing. Even though the new regulations do not—strictly speaking—apply to conventional housing, it's helpful to look at them as an expression of HUD's position on how federal fair housing law applies to requests for assistance animals by residents with disabilities. The final regulations are available at www.fairhousing.com/include/media/pdf/petrule.pdf.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bars discrimination against an individual with a disability. Among the prohibited practices is “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”

One such request may be for an exception to your rules restricting animals in the community. Although you generally are free to adopt whatever rules regarding animals that you believe are appropriate for your community, you may be required to make exceptions to those rules if necessary to afford a resident with a disability an equal opportunity to use and enjoy his dwelling.

HUD regulations cite a classic example: a blind applicant with a seeing-eye dog who wants to live in a community with a no-pets policy. The regulations state that a community would violate fair housing law by refusing to permit the applicant to live in the unit with the dog, because, without the seeing-eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. Although that seems like an easy example—because both the individual's disability and the need for the assistance animal are obvious—enforcement officials are still pursuing alleged violations.

Example: Last year, the owners of an 85-unit community in Pennsylvania agreed to pay up to $60,000 to resolve allegations that it refused to waive its “no-dogs” policy for individuals with disabilities. Based on evidence developed by HUD's Fair Housing Testing Program, the complaint alleged that the community's owners and managers refused to allow guide dog users with vision impairments to reside in the community. Under the settlement, the community agreed to pay $25,000 to compensate victims, plus a $35,500 civil penalty [United States v. National Properties Inc., October 2008].

In general, you must evaluate a request for an assistance animal just as you would any other request for a reasonable accommodation by an individual with a disability. That means that there must be an identifiable relationship between the resident's disability and her need for the service animal, according to the joint HUD-Department of Justice (DOJ) guidance on reasonable accommodations. As an example, the guidance cites a request by a deaf resident for an exception to a community's no-pets policy to allow him to keep a dog in his unit. The resident says that the dog is an assistance animal that will alert him to sounds, such as the telephone ringing or the sounds of a smoke detector, so the community must allow the exception to accommodate the resident, according to the guidance.

You may not reject a request for an assistance animal, merely because the animal's function is to provide emotional support, as opposed to physical assistance, to an individual with a disability. Sadovsky says that emotional support animals are considered to be assistance animals under fair housing law. Although the examples of assistance animals cited in the HUD-DOJ guidance all involve dogs that perform specific tasks, HUD has pursued communities for fair housing violations in cases involving emotional support animals.

Example: In July 2009, the U.S. Attorney's Office in Minnesota sued a community for allegedly refusing to rent to a prospect because her daughter needed an assistance animal to help manage her mental disabilities. According to the complaint, the prospect responded to a newspaper ad for a two-bedroom unit, but when she mentioned that she had a service dog for her disabled daughter, the owner allegedly responded that he did not accept any dogs. Allegedly, the prospect tried to explain what a service animal was—that it was akin to a seeing-eye dog for the blind—and offered to show the owner a doctor's note for the dog. The owner wasn't interested in looking at the letter, according to the prospect, who said that the owner interrupted her and told her to hang up so that other prospective renters could call [United States v. Lund, July 2009].

With respect to assistance animals other than dogs, there has been little guidance from the courts or federal enforcement officials. One court, in a case involving cats and birds, has ruled that fair housing laws are not limited to traditional service animals, such as guide dogs. Sadovsky says the law is evolving, so we'll have to wait for future decisions on animals other than dogs, cats, and birds.

In the meantime, your best bet is to evaluate whether a request for a nontraditional species of assistance animal is reasonable. The law does not require communities to grant unreasonable accommodation requests, but that doesn't mean that you can reject a request simply because the animal is unusual or exotic. It means that you must consider whether the request would impose an undue financial or administrative burden on your community or if it would fundamentally alter the nature of your operations. And even if you believe a request is unreasonable, HUD says that you must engage in an interactive process with the prospect or resident to work out possible alternative solutions.

5 RULES FOR HANDLING REQUESTS FOR ASSISTANCE ANIMALS

Rule #1: Don't Treat Assistance Animals as Pets

Though some communities still ban animals altogether, most communities have policies that allow pets but impose restrictions on the number, type, breed, or size and weight of animals allowed in the community. Furthermore, you can impose restrictions on where and under what circumstances animals are allowed to be in common areas.

Whatever your policy, you must allow exceptions to your policies to permit assistance animals as a reasonable accommodation for an individual with a disability. To avoid confusion, don't think of assistance animals as pets, advises Sadovsky. So, for example, you may not exclude assistance animals simply because you have a general policy banning pets from your community. Similarly, you may have to allow assistance animals that exceed any size or weight limitations.

You could also get into trouble if you have a policy restricting pet owners to certain buildings or ground-floor units. If you applied such a policy to disabled residents with assistance animals, it could be considered unlawful steering.

COACH'S TIP: Even if your community requires pet owners to pay fees or deposits to offset any damages caused by their animals, it is unlawful to require residents with disabilities to pay extra fees or deposits as a condition of allowing them to keep assistance animals, according to federal guidelines. But that doesn't mean that residents with assistance animals are not responsible for damages caused to the unit or the common areas of the community. Federal guidance says that you may charge the resident for the cost of repairing the damage, as long as it's your practice to require all residents to pay for any damage they cause to the premises.

Rule #2: Ask for More Information When Either Disability or Need for Animal Is Not Apparent

In general, the FHA forbids communities from inquiring into the nature or extent of an individual's disability, but HUD guidelines permit you to request certain information about an applicant's or resident's disability if he requests a reasonable accommodation.

Those rules do not permit you to ask for additional information in connection with a request for an assistance animal when there is an identifiable relationship between a resident's disability and the need for the requested accommodation. Under most circumstances, you must grant a reasonable request for an exception to a no-pets policy to allow an assistance animal when both the disability and the need for the request are obvious—for example, the person making the request is a resident who has a guide dog to assist with a visual impairment.

But fair housing law allows you to ask for more information when either the disability—or the disability-related need for the requested accommodation—is not obvious, says Sadovsky. In fact, you have an obligation to do so before denying an exception to rules restricting animals for an individual with a disability who has an assistance animal.

Example: Last year, the owner of a Connecticut community agreed to pay $115,000 to resolve allegations that he unlawfully refused to make an exception to his no-pets policy as a reasonable accommodation for an individual with a disability. According to the charge filed with HUD, a prospect's 9-year-old daughter had an assistance dog to help with her cerebral palsy, seizure disorder, and depression, but the owner had a no-pets policy. The lawsuit alleged that the prospect leased the home and gave the dog away to abide by the no-pets policy, but within months, the daughter began to experience more frequent and severe seizures. Allegedly, the doctor confirmed that her daughter's seizures had increased due to the loss of the service animal and recommended that her daughter get a therapy dog. The complaint alleged that the mother repeatedly attempted to give the owner a copy of the doctor's letter, but he refused to renew their annual lease and initiated eviction proceedings [United States v. Hussein, June 2008].

When the disability is obvious, but the disability-related need for an assistance animal is not, HUD guidelines permit you to request information to evaluate the disability-related need for the animal. HUD guidelines provide an example: When an applicant who uses a wheelchair asks for an exception to your no-pets policy for an assistance dog, HUD says that you may ask for information about the disability-related need for the dog since that isn't obvious.

When the disability is not obvious, federal guidelines allow you to request reliable information to verify that person meets the law's definition of having a disability—that is, a physical or mental impairment that substantially limits one or more life activities. But that doesn't mean you have a right to insist upon a note from a resident's doctor or examine his medical records. Depending on the circumstances, the guidelines say that a medical professional, a peer support group, a service agency, a reliable third party—or even a credible statement by the individual himself—may provide verification of a disability.

COACH'S TIP: In general, Sadovsky says, you may not require documentation that the animal has been certified or specially trained as an assistance animal. HUD has taken that position in announcing its final rules governing assistance animals in federally assisted housing for the elderly and disabled. Responding to comments received by various parties, HUD stated, “The Department's position has been that animals necessary as a reasonable accommodation do not necessarily need to have specialized training. Some animals perform tasks that require training, and others provide assistance that does not require training.” As an example of animals that do not need training to provide the needed assistance, HUD pointed to seizure-alert dogs, which have an innate ability to detect an impending seizure, and emotional support animals, which by their very nature—and without training—may relieve depression, anxiety, or stress-related conditions.

Rule #3: Check Applicable State and Local Laws

Make sure you understand applicable state and local laws related to animals on your property. You may be subject to health and safety rules that forbid certain breeds of animals or limit access by animals to certain areas within your community, such as pools or hot tubs. If your community is subject to such rules, you had better make sure your policies regarding animals conform to the rules. They may prevent you from allowing requests to allow certain types of assistance animals on your property or giving them access to certain areas within the community.

With respect to restrictions on the types of animals allowed on the property, many communities have policies that prohibit certain breeds of dogs, such as pit bulls, Rottweilers, and other breeds, based on concerns about aggressive tendencies, Sadovsky notes. In many cases, those policies are based on insurance restrictions, but in some cases, the policy reflects local laws, such as in Denver, which has banned pit bulls for many years.

If your policies against certain types of animals are based on legal or insurance restrictions, then you have good reason to refuse to allow those breeds—even if they are assistance animals. Just to be sure, Sadovsky recommends confirming those restrictions with state or local officials or your insurance company—and consulting your attorney—before denying the request.

COACH'S TIP: In the absence of legal or insurance restrictions, it's even more important to check with your attorney when you have a request to make an exception to community policies prohibiting certain breeds or types of animals from your property. There are no iron-clad rules on this issue, and Sadovsky says that she has heard of at least one court that has required a community to approve a reasonable accommodation request for a Rottweiler as an assistance animal.

Rule #4: Consider Requests for Exceptions to Pet Rules

Communities also have a legitimate interest in regulating the safe and sanitary management of animals on the premises. For example, communities may require animals to be registered, so that property managers know if there are animals on the premises in case of emergency. Similarly, you may require residents to properly care for their animals, for example, by requiring residents to provide proof of vaccinations. Under ordinary circumstances, there's no reason for you to make an exception to those rules for assistance animals.

Your community can also impose rules to maintain the safety of residents and guests in common areas by requiring pet owners to keep their animals properly restrained while in public areas and to clean up after them. In some cases, Sadovsky says that you may have to make an exception to such rules as a reasonable accommodation for a resident with a disability. For example, she says, a resident with a vision impairment or in a wheelchair may need help to clean up after an assistance animal. Even if you are not technically required to do so, she says, it's preferable to be flexible and offer assistance in such cases—rather than finding yourself in court.

Example: The federal court in New York recently refused to dismiss a lawsuit filed by a prospect of a senior housing complex who claimed that she was denied housing because of the community's refusal to make exceptions to its rules for her companion animal.

According to the complaint, the prospect had multiple disabilities, including dwarfism, and had a service dog to help her with tasks and provide emotional support. During the application process, the prospect met with a leasing agent and discussed her dog, but the substance of the conversation was in dispute. According to the leasing agent, she was unaware that the prospect had a disability other than her short stature and didn't know that the dog was a companion animal. She said that she explained that the complex required dog owners to keep dogs on leads in common areas and walk dogs outside of the premises to relieve themselves, but that the prospect said she would not take her dog off the premises because she wanted the dog “to run loose in the grass.”

The prospect allegedly conceded that she did not identify the dog as a service animal, but insisted that she told the leasing agent that she could not walk him outside the premises “due to her disability.” Allegedly, she offered to housetrain her dog or follow him into the backyard to clean up afterward, but the community ultimately denied her application.

The prospect sued the community, claiming violations of the FHA and other laws. The court dismissed some claims, but ruled that further proceedings were required on the FHA claim to resolve questions about whether the community knew or should have known of the prospect's claimed disabilities, whether the prospect requested a necessary accommodation, and whether the community denied her request [Echeverria v. Krystie Manor, March 2009].

Rule #5: Get Help to Resolve Questionable Requests

If you have any doubt about how to handle a reasonable accommodation request related to an assistance animal, your best bet is to get some help before taking any action on the request. You could contact your local apartment association for advice about any state or local requirements. And Sadovsky recommends turning to local disability advocacy groups to help mediate disputes concerning assistance animals. But perhaps your first contact should be to your local attorney—someone who you know will act on your behalf and help you navigate away from potential fair housing problems.

• Fair Housing Act: 42 USC §3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.

• 24 CFR Part 5, Pet Ownership for the Elderly and Persons with Disabilities; Final Rule, Oct. 27, 2008; www.fairhousing.com/include/media/pdf/petrule.pdf.

COACH Sources

Anne Sadovsky, CSP: Anne Sadovsky and Co., Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.