LEGAL CORNER: HUD’s New Guidance on ‘Service Animals’ and Reasonable Accommodations for ‘Assistance’ Animals

A common issue that arises in connection with many residential lease negotiations and the occupancy of condominium units and cooperative apartments is where the individual seeking to occupy an apartment or unit requests a reasonable accommodation from a housing provider to allow for occupancy of a “service animal” or “assistance animal.” While many requests are legitimate, there are individuals who attempt to violate the law.

On Jan. 28, 2020, the U.S. Department of Housing and Urban Development (“HUD”) issued a new guidance (the “Guidance”) [see https://bit.ly/2TCFdFH] for housing providers to follow when determining whether to provide a “reasonable accommodation” to an individual seeking housing who is requesting that a “service animal” or “assistance animal” be permitted to occupy a particular premises. The 2020 Guidance replaces HUD’s previous guidance issued on April 25, 2013 (“2013 Guidance”) [see https://bit.ly/39yrlSx] and provides a more useful tool for housing providers.

‘Best Practices’ and ‘Clarity’ for Housing Providers

The Guidance focuses on the obligations of housing providers under the Fair Housing Act and provides a set of “best practices” to be followed when assessing whether to grant a reasonable accommodation. The guidance provides housing providers with the types of information and documentation they should and are legally permitted to request from a disabled person. HUD’s goal is “to provide greater clarity” to and “reduce burdens” of housing providers, while at the same time provide important information to those individuals seeking housing who require assistance or support animals.

Distinction between ‘Service’ and ‘Support’ Animals

The guidance points out that “[t]here are two types of assistance animals: (1) service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as a ‘support animal’).” If an animal does not qualify as either a service animal or a support animal, housing providers may treat that animal as a “pet” and would, therefore, be subject to established “pet policies,” lease provisions, co-op rules and regulations, and condominium homeowner’s association rules and regulations. A housing provider would be able to prohibit pets altogether, or, may charge a fee or deposit. It is important to note, however, that in New York, according to the new rental laws [see https://bit.ly/2xA6lth] passed in June, 2019, a landlord is not permitted to charge a tenant a separate fee on account of a pet. A landlord is also prohibited from collecting a separate pet security deposit because the new law restricts a landlord from collecting any security deposit (whether a pet security deposit or general security deposit) that exceeds one month’s rent.

Part I of the 2020 Guidance: ‘Service Animals’

According to the Americans with Disabilities Act a “service animal” is defined as “…any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.” While, the ADA provides that only a dog can be a service animal, other animals may be considered “assistance animals” provided they qualify and meet the criteria outlined in the guidance.

Part I of HUD’s Guidance provides a series of questions that can assist a housing provider, as well as the individual who intends to occupy the premises, to determine whether the animal is a service animal. If the animal is a dog then the housing provider must make two assessments: (1) whether it is readily apparent that the dog is trained to do work to assist the disabled individual, or (2) if it is not readily apparent, then the provider may make certain inquires of the disabled individuals and request reasonable information and documentation. It if is ultimately determined that the dog is not a “service animal” then it must be determined if the animal may qualify as a support animal.

Part II of the 2020 Guidance: ‘Assistance Animals’

If the animal is not a service animal (i.e., a service dog) under Part I, then the housing provider must proceed to Part II. Part II of the guidance provides the steps to be followed when making the analysis required under the FHA to assess whether a reasonable accommodation should be granted regarding an “assistance” or “support” animal.” Under the FHA “[a] reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.”

Part II of the guidance recommends the housing provider require any request for an assistance animal be made in writing, although not required under the FHA. HUD goes on to state that any individual requesting a reasonable accommodation should keep all records in the event there is ever a dispute. A request for reasonable accommodation can be made at any time where an individual acquires the assistance animal. However, the guidance points out that “…timing may create an inference against good faith on the part of the person seeking a reasonable accommodation,” if the individual makes the request only after a housing provider seeks to terminate the lease because of the presence of the animal or other reason. If the individual does not request a reasonable accommodation, then the housing provider does not have to grant it. However, if the request is made then the housing provider must follow the criteria set forth in Part III.

Part III: Criteria for Granting a Reasonable Accommodation

Part III provides a housing provider with a series of questions and guidelines that assist in determining whether or not to grant a reasonable accommodation. One factor is whether an individual has an “observable disability” or whether a housing provider or a provider’s agent has “information giving them reason to believe that the person has a disability.” If either of the above elements are true then the housing provider must determine whether “the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability.”

If an individual provides information to establish that the animal is an assistance animal, a housing provider may include provisions in the lease that require the individual seeking the accommodation to make representations that the documentation is true and accurate, and that it could be deemed a default under the lease if the representations turn out to be untrue or inaccurate. If the provider determines that the information provided does not reasonably support that the animal meets the criteria above, then the provider may deny granting the reasonable accommodation. It is also important to note, however, that if the individual seeking the accommodation does not provide the information or delays in providing the information, a housing provider may not deny an accommodation unless the individual is provided a reasonable opportunity to deliver the required information or documentation.

One key issue, which has been the subject of much confusion and abuse, is the type of information or documentation that is legally sufficient or which an individual provides to a housing provider. The guidance provides that “reasonably supporting information often consists of information from a licensed health care professional —e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse—general to the condition but specific as to the individual with a disability and the assistance or therapeutic emotional support provided by the animal.” The new guidance makes it much clearer that the housing provider now has the right to request more substantive documentation and information. An individual cannot get away with simply providing a certificate or some other document that is purchased or obtained over the Internet with no medical basis.

Part IV: Types of Animals

The guidance also provides clarification on the types of animals that are considered to be service animals and assistance animals. It distinguishes between those animals that are common household animals (i.e., non-commercial animals), such as “dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal”, and “unique animals,” which are animals that are not commonly held in households (i.e., exotic or commercial animals). If the animal is a “unique animal” the individual seeking a reasonable accommodation has a substantial burden to establish that there is a “disability-related therapeutic need” for the animal. Nevertheless, even if the animal qualifies as an assistance animal, a housing provider may still “refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal (e.g., keeping the animal in a secure enclosure).”

Part V: General Considerations

The guidance also details additional general considerations which provide invaluable guidance. Some of these considerations include the following:

• Reasonable accommodation requests apply where Co-op Bylaws and/or Co-op Rules and Regulations, Condominium Homeowner’s Association rules, and land use or zoning laws are involved.

• Pet Rules or “Policies” do not apply when service and support animals are involved, but housing providers can impose certain restrictions if the animals pose a direct threat or physical alteration or damage.

• No deposit, surcharge or fee can be assessed where an assistance animal is involved, however, a charge can be assessed where the animal causes damage.

• Before a housing provider denies a request for reasonable accommodation, the housing provider must “engage in a good-faith dialogue” which is referred to as the “interactive process.”

• Any information received from an individual regarding health and disability conditions must be kept strictly confidential.

HUD’s guidance provides housing providers with critical guidance when assessing whether to grant a reasonable accommodation. This guidance will hopefully vet out any individual who is trying to take advantage of laws meant to protect those with disabilities. Real estate professionals, such as real estate agents and attorneys, representing housing providers should provide them with a copy of HUD’s Guidance.