When to Grant Tenants’ Requests for Assistance Animals

What Would You Do? Neighbors complain that a tenant is keeping Binky, a loud and menacing-looking pit bull, in her apartment in violation of your community’s no-pets policy. You ask the tenant to get rid of the dog or you may have to evict her. She becomes flustered and insists that she has a disability and needs Binky for emotional and physical support. But the tenant seems perfectly healthy, both physically and mentally, and this is the first time she’s ever mentioned anything about having a disability.

After completing this lesson, you’ll know exactly what to do in this situation. More precisely, you’ll know the questions to ask to gather the information to determine whether you have to exempt Binky from your no-pets policy as a reasonable accommodation for the tenant’s disability.

There’s a lot at stake. While the Binky story is made-up, the scenario and fair housing principles it illustrates are very real and very common. Reasonable accommodations for disabilities account for nearly six of every 10 federal fair housing complaints, according to the U.S. Department of Housing and Urban Development (HUD). Among those reasonable accommodation requests, a large and growing percentage involve assistance animals.

It's not hard to understand why assistance animal requests have become such a thorny problem for landlords. The rules determining when you must accommodate assistance animals are complex, confusing, and a magnet for myth and misinformation. The situation was so bad that a couple of years ago, HUD set out to clarify the rules. Unfortunately, the guidance it issued in January 2020 is full of twists and turns that make it all but impossible for an average landlord to digest.

The objective of this month’s lesson is to straighten out the mess and offer a clear, actionable explanation of what HUD wants landlords to do when dealing with requests for assistance animal accommodations. After explaining the basic legal principles, we’ll list the six questions you and your rental and leasing staff should ask when your own tenants seek such accommodations. At the end of the lesson, we’ll use those principles to work through the problem raised in our scenario so that you can see how they apply in real-life situations.   

WHAT THE LAW REQUIRES

Section 3604(f)(3)(B) of the federal Fair Housing Act (FHA) makes it illegal to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

HUD defines reasonable accommodation as “a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” [if they’re in federally assisted housing]. Making exceptions to a no-pets policy to accommodate a disabled rental applicant or tenant (which we’ll refer to collectively as “tenant”) with an assistance animal is a classic example of the kind of reasonable accommodation the FHA requires.  

Other Civil Rights Laws. The FHA isn’t the only federal law that requires housing accommodations for individuals with disabilities. The Americans with Disabilities Act (ADA) requires landlords and other agencies, businesses, and organizations that provide goods or services to the public to make “reasonable modifications” in policies, practices, or procedures to accommodate people with disabilities, including with regard to “service animals,” or dogs that have been individually trained to perform support functions.

Section 504 of the Rehabilitation Act of 1973 requires landlords that receive federal financial assistance to provide reasonable accommodations to tenants with disabilities (and pay for any structural changes those accommodations involve, which generally isn’t an issue in the assistance animal context).

Last but not least, many states and municipalities have adopted disability discrimination and reasonable accommodations laws that go beyond federal FHA, ADA, and Section 504 requirements.

THE 6 QUESTIONS TO ASK

When you boil it all down, the FHA requires landlords (in HUD’s words):

to make reasonable accommodations that a person with a disability may need to have equal opportunity to enjoy and use a dwelling, including a reasonable accommodation to pet or no animal policies so that individuals with disabilities are permitted to use assistance animals in housing, including public and common use areas.

Simple, right? As if. As with most government regulations, the devil is in the details. And there are a lot of devilish details in this rule, including:  

• “Reasonable accommodations”;
• “Person with a disability”;
• “Enjoy and use a dwelling”; and
• “Assistance animal.”

Each of these terms has a very specific meaning. Moreover, we know from decades of caselaw and HUD guidance that the legal validity of accommodations requests and responses is a function of not only the substantive situation but also the accommodations process. The 2020 HUD guidance is an attempt to integrate all of the lessons from caselaw and previous guidance into a set of best practices for landlords to follow when handling accommodations requests for assistance animals. While it’s chock full of useful clarifications about various aspects of the rules, the guidance isn’t really useable as an action plan. A better way to apply the rule above in light of the 2020 HUD guidance principles is to ask six questions when deciding whether to exempt a tenant’s animal from your no-pets policy as a disability accommodation.

Question 1: Has an Accommodation Been Requested?

You don’t have to make accommodations unless they’re specifically requested. However, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” “assistance animal,” or any other magic language. They need only make it clear that they’re requesting an accommodation. Other key things to keep in mind about accommodations requests:

• They can come either from tenants or persons acting on tenants’ behalf;
• They can be made at any time before or after the tenancy starts, including after the start of eviction proceedings;  
• They can be made before or after tenants acquire the animal and bring it into their home; and
• You can ask but can’t require requestors to put their requests in writing.

Compliance Strategy: “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to joint guidelines from HUD and the DOJ (the Joint Guidelines). The 2020 HUD guidance states that landlords should respond to assistance animal accommodations requests within 10 days of receiving documentation supporting the request. That’s an important clarification from previous guidance in which HUD just said that landlords couldn’t “unreasonably delay” in responding to accommodations requests.

Coach’s Tip: In other guidance, HUD has recommended that landlords create forms and procedures that people can use to submit written requests for any types of accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.

Question 2: Does the Tenant Have a Disability?

Tenants are entitled to assistance animal reasonable accommodations only if they have a disability. The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” To qualify for a disability accommodation, a person must:

• Actually have such a disability;
• Be perceived as having such a disability even if that perception is wrong, such as where a landlord rejects an applicant based on the mistaken belief that he has HIV; or
• Have a record of such an impairment, e.g., a recovered drug addict.

“Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

Compliance Strategy: It’s crucial for you and your leasing staff to understand the dangers of judging whether a tenant is disabled by their appearance. Explanation: Disabilities that impair major life activities and require accommodation aren’t always plain to see or readily apparent. That includes both physical disabilities such as heart disease, muscle weakness or breathing ailments, and mental or emotional disabilities. Accordingly, the 2020 HUD guidance notes that when assistance animal complaints lead to actual charges, the victim is usually a person with nonapparent disabilities, like the tenant in our scenario. We’ll get back to this key point when discussing how to verify a tenant’s disability.

Question 3: Is the Tenant’s Animal an Assistance Animal?

The next thing you need to ask is whether the tenant’s animal qualifies for a reasonable accommodation. Explanation: Even if a tenant has a disability, you don’t have to make a reasonable accommodation exemption to your no-pets policy unless the animal is an “assistance animal.” Such animals are not pets, HUD clarifies. They include trained or untrained dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. There are two kinds of “assistance animals”:

1. Service Animals. Service animals are dogs trained to do work or perform tasks for the benefit of an individual with a disability, such as guiding a person with a visual impairment or pulling a wheelchair. That’s the same definition that the ADA uses. So, if a dog is a service animal under the ADA, it’s also a service animal for which an accommodation may be required under the FHA.

Compliance Strategy: According to the HUD guidance, there are two questions landlords can ask to determine if a dog has the training required to be a service animal, but only if this information isn’t readily apparent, such as where the animal is obviously a seeing-eye dog:

• Is the animal required because of a disability?
• What work or task has the animal been trained to perform?

2. Other Assistance Animals. An assistance animal doesn’t have to be a dog; nor does it have to have any specialized training in assisting a person with disabilities. All that’s required is that the animal serve a tenant’s disability-related need. That includes emotional support animals, such as a stray cat that a tenant adopts off the street to help deal with emotional anxieties.

Example: A landlord refused to make exceptions to its no-pets policy for tenants with disabilities unless their animals were registered service animals. The U.S. Department of Justice (DOJ) claimed that the landlord’s refusal to accept an emotional support animal not registered as a service animal violated its duty to make reasonable accommodations. The Pennsylvania federal court ruled that the DOJ had a legally valid claim and allowed the case to go to trial [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].

Assistance Animals Eligible for Reasonable Accommodations Under the FHA

Service Animals	Other Assistance Animals
Defined by ADA	Defined by HUD guidance
Must be a dog	Can be any species
Must be individually trained to work or perform tasks for the benefit of a disabled individual	No special training required
Work or tasks must be directly related to the disability	Must do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individual with a disability
Examples of Assistance Provided
Guiding the blind Alerting the deaf Pulling a wheelchair Alerting individual with epilepsy to upcoming seizure and assisting during seizure	Providing emotional support or companionship in a way that alleviates at least one symptom or impact of a physical or mental impairment

Question 4: Did Requestor Provide Appropriate Documentation to Support Request?

Normally, you’re not allowed to ask tenants if they’re disabled or about the nature and extent of their disability. However, the 2020 HUD guidance gives landlords leeway to request information about both the disability and disability-related need for an animal when tenants request accommodations for assistance animals.

Information about Disability: You’re allowed to request verification of the disability only when that disability isn’t what HUD calls “observable.” According to the 2020 HUD guidance, such information may include:

• A determination of disability from a federal, state, or local government agency;
• Receipt of disability benefits or services (Social Security Disability Income (SSDI)), Medicare or Supplemental Security Income (SSI) for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency;
• Eligibility for housing assistance or a housing voucher received because of disability; and/or
• Information confirming disability from a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, nurse, or other healthcare professional.

Coach’s Tip: A determination that individuals don’t qualify as having a disability for purposes of a benefit or other program doesn’t necessarily mean they don’t have a disability for purposes of the FHA, ADA, Section 504, or state or local fair housing laws.

Compliance Strategy: There are strict limits on the type of information you may request and the methods you may use to gather it. Practices that are off-limits include:

• Asking about the tenant’s diagnosis or the details of their medical condition;
• Requiring tenants to undergo a medical exam; and
• Requiring a health care professional to use a specific form, provide notarized documents, or make statements under penalty of perjury.

Information about Disability-Related Need for Assistance Animal: You may also ask for information about the relationship or connection between the disability and need for the assistance animal to the extent the disability is non-observable and/or the animal provides therapeutic emotional support.

Compliance Strategy: Reasonably supporting information typically consists of information from a licensed healthcare professional that’s general as to the condition but specific as to the individual and the assistance or therapeutic emotional support the animal provides.

DEEP DIVE

Use of Internet Documentation for Disability Verification

Some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee.

Question: Can landlords use this information to verify that a tenant without an observable disability is actually disabled and has a disability-related need for an assistance animal?

Answer: According to the 2020 HUD guidance, based on experience, internet documentation by itself isn’t enough “to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

However, the guidance also notes that “many legitimate, licensed healthcare professionals deliver services remotely, including over the Internet.” “One reliable form of documentation is a note from a person’s healthcare professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.”

Takeaway: Certification via the internet isn’t reliable unless it shows some sort of preexisting therapeutic relationship between the tenant and healthcare provider for purposes beyond simply providing verification of a disability-related need for an assistance animal.

Nevertheless, experts warn that some online services have anticipated this requirement by contracting out referrals to social workers or mental health therapists who receive the referral from the internet certification site after the customer pays the fee. The referred therapist then reviews the online questionnaire or has a brief call with the tenant. It’s unclear whether the boilerplate verification letters that emerge from these brief contacts constitute reliable verification under HUD standards, and several attorneys have expressed doubt and cautioned against relying on them. 

Question 5: Is the Requested Assistance Animal Accommodation Reasonable?

Let’s say that so far you’ve determined that:

• An appropriate accommodation request has been made;
• The tenant has a disability;
• The animal is an assistance animal; and
• The assistance animal serves the tenant’s disability-related need.

Do you have to provide the requested accommodation?

Not necessarily. There’s still one more question to answer, namely, whether the actual accommodation requested in this particular case is reasonable. We know from previous guidance that HUD considers an accommodation reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

Compliance Strategy: For purposes of assistance animals, prong three is the crucial criterion. The first step in applying this criterion is to consider the type of assistance animal the tenant wants to keep in the apartment. According to the 2020 HUD guidance, the landlord should grant the accommodation if “the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.” For purposes of this analysis, the guidance adds, reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals don’t count as common household animals.

Theoretically, landlords might also have to make reasonable accommodations for assistance animals that HUD describes as “unique.” However, the tenant has the “substantial burden of demonstrating a disability-related therapeutic need for” the unique animal. The guidance cites the example of a capuchin monkey specially trained to perform tasks for a person with paralysis caused by a spinal cord injury.

At the same time, tenants are responsible for keeping their assistance animals in their apartment or other available facilities. Accommodations requiring landlords to create special outside areas, cages, and other facilities just for the assistance animal would likely be deemed unreasonable as imposing an undue financial or administrative burden. As a result, the HUD “unique” animal example might work for a monkey but not a full-grown elephant, camel, or tiger.    

In addition, while assistance animals aren’t pets, tenants with disabilities are still responsible for caring for them. While you might have to lend the tenant reasonable assistance, you don’t have to offer elaborate feeding, walking, or other services to the extent that it would require you to fundamentally alter the nature of your business. That business is to provide housing, rather than pet care services.

Tenants must also ensure that their assistance animals comply with reasonable community rules and don’t create untoward damage, danger, or nuisances to other tenants. If they do, you may have cause to evict.  

Example: A Florida condo association with a no-pets policy let a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turned into incessant barkers who disturbed their neighbors. The association ordered the tenant to get rid of them or face eviction. The state court ruled that the association didn’t violate its duty to accommodate and refused to grant the tenant an injunction barring enforcement of the rule [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].

Also keep in mind that accommodations aren’t reasonable if they require you to deprive other disabled tenants an equal opportunity to use and enjoy their own apartments. Rather than trying to determine which tenant is “more disabled” or has the greater need for accommodation, it’s your responsibility to accommodate both tenants as best you can.

Example: A tenant complains that she has severe allergies to a disabled tenant’s emotional support cat. The tenant’s allergies are as much a disability as the condition for which the other tenant needs the support cat. So, you must accept the cat while also coming up with reasonable ways to keep it away from the allergic tenant, such as by establishing animal-free zones in common areas used by both tenants.   

Question 6: Are There Any Alternatives to Accommodations that Are Unreasonable?

The accommodations process doesn’t end when you conclude that a requested accommodation for an assistance animal is unreasonable. Before rejecting the request, you must dig deeper and, as the 2020 guidance describes it, “engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.” Whether an alternative is reasonable is a judgment call that depends on the circumstances.

Example: A mobility-impaired tenant demands that you hire a special assistant to take his dog to the vet and walk him three times a day. While bringing on a dedicated staffer might be unreasonable to the extent it requires a fundamental alteration of your business, it might be reasonable to make existing on-site personnel available for pet walking services.

Assistance Animal Accommodations Request Dos & Don’ts

• Other things to keep in mind when responding to assistance animal reasonable accommodation requests:
• DON’T charge tenants a fee to process their accommodations requests;
• DON’T charge a pet deposit for assistance animals;
• DO charge disabled tenants for damages their assistance animals cause the way you would a non-disabled tenant for damages done by their pets;
• DON’T limit the breeds or sizes of assistance dogs;
• DO enforce reasonable community rules and impose limits based on an individual animal’s conduct;
• DON’T accept animals that would directly endanger the health and safety of others;
• DON’T retaliate against tenants for requesting assistance animal reasonable accommodations;
• DO safeguard the confidentiality of personal health information you collect from the tenant during the accommodations process.