The Fair Housing Act (FHA) provides for two distinct types of assistance animals: (i) the service animal and (ii) the emotional support animal. In general, the FHA makes it unlawful for a housing provider, which includes condominium and homeowners associations, to refuse to make a reasonable accommodation in rules, policies, practices, or services on behalf of a person with a disability where such accommodation is needed in order to provide the disabled person an equal opportunity to enjoy and use their dwelling. One of the most common requests that an association receives is an accommodation to the association’s pet restrictions, whether such restriction is a weight or breed limitation or a total prohibition on pets. While there is a real need for such accommodations, there also appears to be considerable fraud in the context of the emotional support animal request.
In the context of the emotional support animal, the association has the right to know if the person requesting a reasonable accommodation for an emotional support animal has a disability, most often defined as a mental or physical impairment that substantially limits one or more major life activities, and whether the animal helps ameliorate the disability. However, the same is not true when it comes to the other classification of assistance animal, the service animal. The Department of Housing and Urban Development (HUD) refers to the American Disabilities Act in defining the term “service animal” 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.
Recent guidance issued by HUD in FHEO-2020-01 on January 28, 2020, has made it easier than ever for residents to claim a need for an accommodation for a service dog without having to provide meaningful documentation to evidence their claim. The information presented below is provided to educate board members and managers of these somewhat absurd changes to HUD’s guidance and should not be relied upon by a disingenuous owner seeking an accommodation because, sooner or later, the fraud will present itself. The January 28, 2020, HUD notice can be found at kbrlegal.com. Once there, click “Resources,” then click “Links.” Associations should rely on this guidance when evaluating any request.
It is important to note that assistance animals are not pets. Rather, they are animals that work, assist, perform tasks, and/or provide emotional support for the benefit of a person with a disability. Not a single “pet” rule applies to assistance animals. As discussed above, under the FHA there are two types of assistance animals: (i) service animals that do work, perform tasks, and provide assistance, and (ii) those animals that provide therapeutic emotional support for individuals with disabilities, referred to as emotional support animals. HUD provides a completely different analysis for the association to follow depending on whether the applicant claims that the animal at issue is a service animal or an emotional support animal.
The remainder of this article will focus on the appropriate analysis in the event a resident requests an accommodation for a service animal. The analysis discussed below only applies to requests for a service animal and does not apply to a request for an emotional support animal, which is briefly addressed above.
A service animal is narrowly 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. The animal must be a dog, and the work or tasks performed by the dog must be directly related to the individual’s disability. Therefore, if the association receives a request for an accommodation for a service animal, it must follow the following analysis as provided by the HUD guidance which is word-for-word quoted below:
- Is the animal a dog?
- If “yes”, proceed to the next question.
- If “no”, this is not a service animal but may be a support animal.
- Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability? (for example, the individual is blind and the dog is a clearly trained guide dog)
- If yes, grant the accommodation, no further inquiries necessary.
- If no, proceed to the next question.
- Ask the following questions: (1) is the animal required because of a disability? (2) what work or task has the animal been trained to perform?
- If the person answers yes to the question (1) and the work or task is identified in response to question (2), grant the accommodation because the animal qualifies as a service animal.
- If the answer to either question is no or none, the animal does not qualify as a service animal but may be a support animal or other type of assistance animal. The analysis regarding emotional support animals would then apply.
In accordance with the HUD guidance, if the individual claims the dog is required because of a disability and asserts the work that the dog has been trained to perform, the association is not permitted to ask about the nature or extent of the person’s disability or to even ask for documentation to corroborate the person’s claim!
In other words, if a resident claims that their dog is a service dog, even if it is not readily apparent that the dog is trained to do work or perform tasks for the benefit of the resident with a disability, the guidance from HUD suggests that the association is fully restricted to asking only the questions above. Thus, the association must grant the accommodation request if the person claims to have a disability and identifies the work that the dog has been trained to perform. This applies even if the disability is not readily apparent and even if the dog’s training is not apparent. The inquiry stops there. The association has no authority whatsoever to request any further documentation to corroborate the person’s claims in any way. In fact, if the association does ask for documentation—for example, a doctor’s note or evidence of the dog’s training to perform the identified task—the association, and the board members in their individual capacity, may be liable for violating the FHA. Oddly, a plain reading of this latest guidance could be interpreted to mean an association could be in very hot water, indeed, in the event the association probes the need for the service dog and/or its training, even if it turns out in the end that the claim was fraudulent, albeit that would be an absurd result. This situation is analogous to having to file a homeowner insurance claim due to a lawsuit brought by a thief who broke his leg while breaking into your home. In plain English, it stinks.
This change in the guidance from HUD regarding service animals clearly even further opens the doors for individuals to abuse the process. As the association is not permitted to request documentation to confirm the disability-related need for the animal, associations have no way to evaluate the truth of the claims made by the residents. As discussed above, this analysis is only applicable if the resident requests an accommodation for a service dog.
If your association receives a request for an assistance animal, whether a service animal or an emotional support animal, I strongly recommend that the board consult with the association’s legal counsel before requesting more information or denying the request. Do not be penny wise and pound foolish. In today’s ever-litigious society, being able to hide behind “advice of counsel” is priceless.
(Reprinted with permission from the June 2021 edition of the Florida Community Association Journal)