On January 28, 2020, the United States Department of Housing and Urban Development (HUD) issued a notice (Notice) that provides guidance to housing providers that can be used as a resource in evaluating requests for assistance animals as a reasonable accommodation under the federal Fair Housing Act (FHA). The definition of “housing providers” under the FHA includes, but is not limited to, homeowners associations and landlords.
Residential communities (e.g., condominiums, townhome communities, rental buildings, etc.) often prohibit or restrict residents from keeping animals in the living units. In some circumstances, however, a disabled resident may need to keep and utilize an “assistance animal” in the resident’s living unit and the common areas in the community in order to have full enjoyment of such areas. As a result, a disabled resident may request that the housing provider allow the resident to keep and utilize an assistance animal as a reasonable accommodation to the housing provider’s rules, policies, or procedures that otherwise prohibit or place restrictions on animals within the community. In fact, housing providers are receiving such requests at an increasing rate.
Under the FHA, it is generally unlawful for housing providers to refuse to make a reasonable accommodation in its rules, policies, practices, or services when such an accommodation may be needed by a disabled resident to use and enjoy a dwelling. Accordingly, if a housing provider refuses a disabled resident’s requested reasonable accommodation for an assistance animal, the housing provider may be in violation of the FHA and other federal disability discrimination laws. Historically, HUD has provided limited guidance to housing providers when faced with resident requests for assistance animals as a reasonable accommodation.
Summary of the Notice
The Notice sets out two groups of “best practices” to follow when presented with a request for an assistance animal as a reasonable accommodation. One group, entitled “Assessing a Person’s Request to have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” provides information on the procedures and considerations to use when assessing a resident’s request for an assistance animal. That group addresses, in part: (1) the types of animals that may be an assistance animals and the services that an assistant animal provides, (2) when a request for an assistance animal constitutes a request for a reasonable accommodation, and (3) the criteria that housing providers should use when assessing whether to grant a requested accommodation.
The second group of “best practices,” entitled “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” addresses, in part, the information that a resident should provide to the housing provider in support an accommodation request, including documentation from the resident’s health care provider (or other qualified person) in support of the resident’s need for an assistance animal.
Housing providers, including homeowners associations, landlords, or otherwise, should become familiar with the Notice and its guidance from HUD, and work with their legal counsel to review and update their current policies relating to resident requests for assistance animals as a reasonable accommodation. Violations of the FHA can lead to costly court or administrative legal actions; accordingly, all housing providers should have an established process for handling resident requests for reasonable accommodations.
We gratefully acknowledge and appreciate the substantial contributions of attorney Jeffrey Maleska in preparing this article.