By: Cristina N. Hyde, JD

Last winter, the United States Department of Housing and Urban Development (HUD) released updated guidance to clarify housing providers’ obligations under the Fair Housing Act (FHA) when asked to accommodate an animal intended to provide assistance with a disability.  There are two types of animals that fit this description:  service animals and emotional support animals (ESAs).  Campanella Law Office has seen an increase in inquires about this topic in light of the recent airline crackdown on emotional support animals.

A service animal is an animal that has specific training to perform a task or a service for a disabled person.  An ESA is an animal with no specific training that is prescribed to a patient by a mental healthcare provider to provide emotional support to the individual for a mental health condition.  While service animals are protected by the American Disabilities Act (ADA); considered essential medical equipment and afforded full public access rights, ESAs are not.  However, the FHA applies to both and mandates that service animals and ESAs be provided “reasonable accommodations” even in buildings that do not normally allow pets; allowing disabled individuals an equal opportunity for housing.

The recent HUD guidance is meant to provide some clarity regarding ESAs. A step-by-step best practices for compliance when assessing accommodation requests relating to animals can be found here.

When assessing a request for accommodation, here are some key points a housing provider must know.

• Even if an apartment has a “no pets” policy, you are still required to make reasonable accommodations for ESAs.
• You may not request a deposit or impose additional rent or fees for a service animal or ESA, even if you would normally do so for a pet. However, a tenant can be held liable for any damage their animal might cause.
• You may not ask for details about an individuals disability, request medical records, or require a medical examination of an individual when faced with an accommodation request.
• You may not require proof of “certification” for an ESA, insofar as certification is not required.
• You may not require registration of an ESA, insofar as no such registry exists.
• You may not require that an ESA have specific training.
• You may ask for proper documentation for an ESA (i.e., a letter from a licensed health care professional such as a therapist, counselor, social worker, psychologist, psychiatrist, nurse, nurse practitioner, physician or physician’s assistant). You may deny accommodation if a legitimate letter is not provided.
• You may deny an accommodation requests under very limited circumstances which include proof or a financial burden, the belief that an ESA poses a direct threat to the health and safety of others or if the ESA would cause substantial property damage. Such a determination must be made on an individual basis and cannot be based on categorical assumptions such as those made based on a particular breed.

If you have any questions regarding the 2020 HUD guidance or would like assistance with accommodation requests, Contact Us.