Assistance Animals and the Fair Housing Act

Part 1 of a 2 part Series

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As a property manager, have you ever told a prospective resident any of the following?

"Your service dog must be certified."

"Google how to get your service dog certified."

"We're not required to waive pet fees for service animals but do so as a courtesy."

"We only provide waivers for seeing eye dogs and not for people who have a choice."

If you've ever made any of these statements or one similar, keep reading because you may have violated the Fair Housing Act.

The Fair Housing Act (FHA)

The Fair Housing Act prohibits discrimination on the basis of disability in housing in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. A housing provider must grant a reasonable modification or accommodation if the request is made by a qualified handicapped person and meets the requirements established for a disability related need.

In 2012, employees of apartment communities in Nevada made those exact statements from above to prospective residents, and The United States of America Department of Housing and Urban Development (HUD) filed suit against them for Fair Housing violations as a result. Under a consent decree, the communities were ordered to pay $167,500 in damages and civil penalties.

Regardless of whether your property allows pets or not, landlords frequently receive requests by their residents for reasonable accommodations to be made to allow their assistance animals to live with them, so it's important to set up policies and procedures to insure that you don't run afoul of the law.

Why do you have to make a reasonable accommodation?

Sec. 804 of the FHA, which applies to discrimination in the sale or rental of housing, requires that a housing provider grant a reasonable modification or accommodation if the request is made by a qualified handicapped person and meets the requirements established for a disability related need.

In order to obtain a reasonable accommodation, the person for whom the request is made must meet the definition of handicap under the Fair Housing Act.

Handicap, with respect to a person, means:

1. Having a physical or mental impairment which substantially limits one or more of such person's major life activities,

2. Having a record of such an impairment, or

3. Being regarded as having such an impairment, but does not include current, illegal use of or addiction to a controlled substance.

To know how to properly handle requests for reasonable accommodation, it's also important to understand the differences between the types of assistance animals.

The FHA and Section 504 defines assistance animals as 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 symptoms or effects of a person's disability. Therapy animals are not assistance animals under the FHA or Sec. 504.

There are three categories of animals that fall under the umbrella of assistance animals:

1. Service Animals

2. Emotional Support Animals

3. Therapy Animals

Service Animals

A service animal is one that has been specially trained to perform a task for a disabled person. The requirements to qualify as a service animal is that the person must be disabled and the animal must perform a task for the person. A service animal can only be a dog or miniature horse.

Examples of service animals are guide dogs for the blind, seizure alert animals, or animals trained to assist the hearing impaired.

Emotional Support Animals

Emotional support animals (ESA) are animals that provide emotional support to persons with disabilities that need such support and do not require any specialized training. They are not allowed access in public areas, with the exception of airlines and housing. The most common are dogs and cats. However, there have been unusual animals that qualified such as a pig, ferret, parrot, boa constrictor or monkey.

Therapy Animals

Therapy animals are not required to have any specialized skills, but have had basic obedience training. They undergo temperament evaluations by a governing and insured organization. Therapy animals, which are usually dogs, are used to provide affection and comfort to people in hospitals, nursing homes, schools, hospices, disaster areas, and to people with learning disabilities. Examples of therapy animal organizations in Alabama include Hand In Paw in Birmingham and Dogs on Call in Montgomery.

Stay tuned! In part 2, we will discuss procedures to follow when receiving a request for an accommodation from a resident.

Thank you to our friends Abigail Witthauer of Roverchase Academy and Macallan the Service Dog.