HUD Issues New Guidance on Emotional Support Animals in Condominiums and HOAS
By: Erin Glover-Frey, Esq.
On January 28, 2020, the US Department of Housing and Urban Development (“HUD”) issued new guidance on when a housing provider must provide a reasonable accommodation of “assistance animals” for disabled residents under the Fair Housing Act. “Assistance animals” includes both service dogs – i.e. dogs individually trained to perform work for the disabled resident – and the more contentious “emotional support animals” that provide assistance to the disabled person just by virtue of being an animal. Condominiums and Homeowners Associations are housing providers subject to the Fair Housing Act and must provide disabled residents with reasonable accommodations of their disabilities upon legitimate request, even if the accommodation would be in violation of the association’s governing documents.
The new HUD guidance clarifies the types of animals for which housing providers are required to provide an accommodation, and specifically excludes reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals, unless unique circumstances exist.
HUD also clarified that assistance animal documentation from the internet “is not, by itself, sufficient to reliably establish that a person has a non-observable disability or disability-related need for an assistance animal.” In other words, a housing provider does not have to provide an accommodation based on an internet registration alone, however a medical or mental health provider may still assess the disabled resident via the internet.
To simplify the process for reviewing a request for a reasonable accommodation, HUD provided a step-by-step inquiry for housing providers as follows:
- Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability?
Yes à Skip to Question 3
No à Go to Question 2
- Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?
Yes à Go to Question 3
No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.
- Has 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?
Yes à Go to Question 4
No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.
- Is the animal commonly kept in households (dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other, small domesticated animal)?
Yes à The housing provider should provide an accommodation, unless doing so would constitute a direct threat to the health or safety of other individuals that cannot be eliminated or reduced to an acceptable level through actions of the owner.
No à The housing provider does not need to provide an accommodation, except under very rare and unique circumstances.
These questions, though helpful, still leave wiggle room for loopholes and fraudulent requests for accommodation. If you are a housing provider and are presented with a request for an accommodation, to avoid costly litigation in the future, the best practice is to consult with an experienced and knowledgeable attorney before making any decision.