The Fair Housing Act and a Service Animal

In Part I and Part II of our series talking about a service animal, we discussed the rights and regulations dictated in the Americans with Disabilities Act (ADA).  Our previous posts established what a service animal is under federal law, and what the responsibilities and duties owners of public accommodations owe to disabled folks under the ADA.

Beyond public accommodations, there is additional federal law that regulates landlords’ acceptance of service animals and emotional support animals in public and private housing.  The two federal laws to know in addition to the ADA are the Fair Housing Amendments Act (FHAct) of 1988¹⁾This act amends Title VIII of the 1968 Civil Rights Act and Section 504 of the Rehabilitation Act of 1973 (Section 504).

 

 Content of the Fair Housing Amendments Act and Section 504 of the Rehabilitation Act with respect to a service animal

The pertinent parts of each of these federal laws contain similar measures.  Section 504 is applicable to any program that accepts government funds to help pay for subsidized or public housing ²⁾this does not include landlords that only accept money for Section 8 rental assistance.  The FHAct applies to almost all other types of housing.  The only landlords exempt from the FHAct are:

1. Buildings with four or less units in which the landlord occupies one of the units
2. Single-family dwellings sold or rented without the assistance of a real estate broker
3. Hotel and motels³⁾though each of these are still subject to the ADA
4. Private clubs

Under the FHAct and Section 504, the landlord shall permit a service animal or an emotional support animal if:

1. The tenant has a disability
2. The landlord is aware of the disability
3. Reasonable accommodation is necessary for the tenant in question to have an equal opportunity to use and enjoy the dwelling like anyone else
4. Accommodating the animal request would not constitute an undue burden on the landlord or fundamentally alter the premises

We will discuss each of these elements in turn.

 

What is a disability with respect to housing?

If (unfortunately) a tenant must pursue legal action in order for a landlord to accommodate his or her reasonable request, the court is going to demand proof of the disability.  Simply being disabled is not sufficient.  Unlike the ADA’s rules governing public accommodations, mental disabilities that require emotional support from an animal are covered by the FHAct and Section 504⁴⁾recall the difference under the ADA for emotional support animals [not covered] and psychiatric service dogs [used by folks with PTSD, for example, that are covered].  The FHAct and Section 504 are broader in scope, which is reasonable.

An important distinction between an ADA service animal, and the emotional support animal under FHAct and Section 504, is that an ADA service animal usually has to be a dog, where many other species can qualify as emotional support animals.

 

Landlord Awareness

A tenant may not unilaterally violate the terms of his or her lease because a disability exists.  S/he must request the reasonable accommodation in writing, along with a note from his or her doctor or mental health provider.  The U.S. Department of Housing and Urban Development (HUD) advises that landlords consider the follow inquiry once receiving a reasonable accommodation request:

Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?

Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?⁵⁾See HUD Rules for more information

 

Note that the tenant does not need to provide proof that the animal is properly trained or certified⁶⁾in fact it is illegal for a landlord to make such a request.

 

Reasonable Accommodation

This factor of the test considers if it is reasonable for a tenant to need an emotional support animal to have the equal opportunity to live and enjoy accommodations as much as someone could who does not have the disability in question.  Case law has established that permitting an emotional support animal is a reasonable accommodation under the FHAct and Section 504 ⁷⁾see the oft cited Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981) for an example.

 

Undue Burden

This is a difficult element to prove for a landlord that desires to deny an emotional support or service animal to a requesting tenant.  It is not an undue burden under law for a landlord to have to spend a little more money to accommodate the tenant⁸⁾This is considered part of the cost of doing business by Congress.  The most common undue burden is when the service or emotional support animal harasses or disturbs other tenants; in these scenarios, it is possible that a landlord could validly evict the tenant with the disruptive animal.

Additionally, a landlord may not charge a higher deposit than normal for a service or emotional support animal, as they are not considered pets by federal law.  Yet if the animal causes damage to the property, the tenant may be held liable.

 

Stay tuned for part IV of our series on airplane travel and service animals.