Assistance Animal Policy
The Federal Fair Housing Act requires that applicants and tenants with disabilities be provided with “reasonable accommodations” as needed, in order for them to have an opportunity for full use and enjoyment of their housing. Allowing tenants and their guests who have disabilities to be accompanied by their assistance animals is a reasonable accommodation to housing policy and practice.
WHO NEEDS ASSISTANCE ANIMALS?
Some people with disabilities require the assistance of an animal because of their disabling conditions. Under most federal laws, a person is considered to be disabled if s/he has a sensory, mental or physical condition that substantially limits one or more major life activities (such as walking, seeing, working, etc.).
WHAT IS A ASSISTANCE ANIMAL?
The most common assistance animals are dogs, but sometimes other species are used (for example, a cat or a bird). Assistance animals may be any breed, size or weight. Some, but not all, assistance animals wear special collars and harnesses. Some, but not all, are licensed or “certified” and/or have identification papers. However, there is no legal requirement for assistance animals to be visibly identified or to have documentation. In addition, there are many types of assistance animals with different names which are not certified and donít have special training. For example, emotional support animals, sometimes called companion animals, donít perform specific tasks but are considered assistance animals. Their presence may help alleviate symptoms of a disability. The next two sections explain in detail the different types of assistance animals.
WHAT’S THE DIFFERENCE BETWEEN A ASSISTANCE ANIMAL AND A PET?
Assistance animals are not considered to be pets. A person with a disability uses an assistance animal as an auxiliary aid — similar to the use of a cane, crutches or wheelchair. Assistance animals are an auxiliary device necessary for the full enjoyment of a home. For this reason, fair housing laws require that housing providers make modifications to “No Pet” policies to permit the use of an assistance animal by an individual with a disability.
WHAT DO ASSISTANCE ANIMALS DO?
PRACTICAL GUIDELINES FOR HOUSING PROVIDERS AND PROPERTY MANAGERS TO FOLLOW
ASSISTANCE ANIMAL ACCOMMODATION:
Property management must review all requests a tenant with a disability makes for reasonable accommodations, including requests for an assistance animal accommodation. A property manager might require the tenant to provide a third party verification from a “reliable source,” when the disability of the tenant and/or the need for the accommodation are not obvious. HUD has provided guidance on assistance animals that needs to be used in conjunction with this assistance animal guidance. In 2004 the U.S. Dept. of Justice and Dept. of Housing & Urban Development wrote in a Joint Statement that:
In 2013 HUD issued a Service Animal Policy that gave additional guidance on Emotional Support Animal verifications:
When property management requires proof that the tenant has a disability and that the accommodation assists the person with that disability, they still cannot require the tenant to provide information about the nature or severity of the disability.
PET RULES AND “NO PETS” RULES:
If you allow tenants to have common household pets and you place limitations on the size, weight, and type of pets allowed, these rules do not apply to assistance animals. Assistance animals may be any type of animal and any breed, size or weight, and an accommodation may involve more than one assistance animal. If your insurance provider says you have to restrict breeds, you should contact HUD, a fair housing center, or an attorney about this possible infraction of the law.
If a housing complex has a “no pets” rule, such rules do not apply to assistance animals. If property management has documentation that the tenant has a disability and needs the assistance animal as a result, then the tenant can live with the animal despite the no pets rule.
DEPOSITS AND FEES:
AN ASSISTANCE ANIMAL IS NOT A PET. Regardless of whether your property allows pets, a tenant who uses an assistance animal is not required to make a pet deposit or pay a pet-related move-in cleaning fee. You may charge a general cleaning or damage deposit charged to all tenants. The tenant is liable for any damage the animal actually causes.
Good property management will ensure that staff and other tenants are properly trained in the facility’s assistance animal policies, including the following rules:
ANIMAL CARE AND SUPERVISION:
The tenant/handler has the responsibility to care for and supervise the animal. The tenant must retain full control of the animal at all times. This generally means that while the animal is in common areas, it is on a leash, in a carrier, or otherwise in the direct control of the animal owner/handler. When in the presence of others, the animal is expected to be well behaved.
REMOVAL OF A ASSISTANCE ANIMAL:
If an assistance animal misbehaves, the property manager may ask the tenant/handler to remove the animal from the immediate area. If the animal's improper behavior happens repeatedly, the manager may tell the tenant not to bring the animal into certain common areas, until significant steps have been taken to stop the behavior. This might include some type of specialized training for both the animal and the tenant.
AREAS OFF-LIMITS TO ASSISTANCE ANIMALS:
Management may designate certain areas off limits to assistance animals, such as swimming in the pool or inside the sauna room. Such designations should not infringe upon the right of a person with disabilities to full enjoyment of the amenities of the community.
PRACTICAL GUIDELINES FOR TENANTS WHO WANT OR NEED ASSISTANCE ANIMALS
REQUEST FOR A ASSISTANCE ANIMAL ACCOMMODATION:
The tenant who needs an assistance/companion animal can submit a request to the housing provider for an accommodation for the tenant's disability. Even though people with disabilities are not required to use company forms, having forms that allow someone to “fill in the blank” might make the process easier for both staff and tenants/applicants. If there are no forms, a tenant can write a letter or verbally ask for the accommodation. Written requests should be dated, copied and copies should be retained by the tenant for proof that the request was made.
VERIFICATION OF DISABILITY AND NEED FOR A ASSISTANCE ANIMAL:
The tenant must be prepared to provide written verification that s/he has a disability and that the accommodation is necessary to give the tenant equal opportunity to use and enjoy the housing and/or housing community. If the tenant/applicantís situation requires that they get a third person to verify the disability or the need for the accommodation, (this happens when a personís disability is not obvious), the tenant/applicant should obtain a signed letter on professional letterhead from his/her healthcare or mental health provider to the housing provider answering the following questions:
While the property management may not require the requester of an accommodation to disclose the nature or severity of his/her disability, the requester might be required to show the relationship between the disability and the need for the requested accommodation. For example, a tenant applicant may need a seizure response animal. The seizures may come and go unexpectedly and be due to genetics, an injury or some other situation. The only thing they need to disclose is that they have had seizures and may have seizures in the future and that the seizures come and go unexpectedly. Either the tenant/applicant can explain this or have it explained by a health care provider. The tenant/applicant does not have to say how often they have seizures, how severe the seizures are or what causes the seizures.
ANIMAL CARE AND SUPERVISION:
The tenant/handler is responsible for the care of his/her assistance animal. The animal must be supervised and the tenant/handler must retain full control of the animal at all times. This generally means that while the animal is in common areas, it is on a leash, in a carrier, or otherwise in the direct control of the animal owner/handler. When in the presence of others, the animal is expected to be well behaved.
The tenant is responsible for the proper disposal of animal waste —
Miami Valley Fair Housing Center http://www.mvfairhousing.com
Insurance Policy Restrictions as a Defense for Refusals to Make a Reasonable Accommodation
On June 12, 2006, HUD issued a memorandum providing “guidance on how HUD investigators should examine Fair Housing Act ‘reasonable accommodation’ cases where a housing provider cites an insurance policy restriction in denying a requestion from a person with a disability to reside in a dwelling with an assistance animal that is of a breed of dog that the landlord’s insurance carrier considers dangerous.” The full text of that memo is available in PDF format here:
Recent DOJ amendments to ADA regulations and how they affect reasonable accommodation requests
On February 17, 2011, HUD issued a memorandum providing guidance on new rules recently issued by Department of Justice regarding the definition of “assistance animal” under the Americans with Disabilities Act (ADA). According to this HUD memo, the DOJ rules “do not affect reasonable accommodation requests under the Fair Housing Act and Section 504 of the Rehabilitation Act of 1974.”
More specifically, “in situations where both laws apply, housing providers must meet the broader Fair Housing Act/Section 504 standard in deciding whether to grant reasonable accommodation requests.”
The full text of the memo is available in PDF format here: