By Ryan D. Poliakoff / Published May 2018
By far, the most common question that I get on a weekly basis is some variation of a question regarding “prescription pets”—emotional support animals or, more generally, assistance animals. Hopefully what follows will shed some light on this complicated subject and explain why there really is no such thing as a pet-free property.
Pursuant to the Fair Housing Act, a federal law that governs discrimination in housing, no housing provider (including, in addition to rental properties and other more traditional “providers,” condominiums, HOAs, and cooperatives) may discriminate against any person on the basis of his or her disability. A disability is broadly defined as any condition that limits one or more daily life activities. For example, if you have a medical condition that prevents you from sleeping, that would be a disability under the law. Eating, going out, running errands, interacting in public—all of those life functions, if limited by a medical condition, would constitute a disability that qualifies under the law. Courts have held that mental conditions such as depression, anxiety, post-traumatic stress disorder, and the like are all disabilities as far as the fair housing law is concerned.
In addition to prohibiting direct discrimination (an association flatly denying you the ability to rent a lot or unit because of your condition), the FHA states that housing providers must make “reasonable accommodations” of their rules and policies if necessary to afford a disabled person the full use and enjoyment of their home and the common facilities. One of these reasonable accommodations is to waive a no-pet rule if a person has an animal that serves as a treatment for a disability.
Now, some assistance animals are obvious—dogs that assist visually-impaired persons are a medically necessary treatment for that person’s disability, and in such an overt case you would not even ask the resident for proof of their need for the accommodation. But, what about animals that have no special training but that still serve to treat a person’s medical condition? This is where emotional support animals fit in; if a treating medical professional (who does not have to be a doctor) certifies that a person has a disability, that an animal (of any kind) is a medically necessary treatment for that disability, and that the animal is necessary to afford the person the full use and enjoyment of the property, the association is obligated to allow the animal on the property. And, this largely means everywhere. The entire point of the law is that a person is entitled to whatever assistance he needs to use the full facilities, so an association cannot pass rules stating that assistance animals must stay in the unit, only travel through the back door, or stay away from the lobby. It is true that the accommodation must be reasonable, so you certainly can still require people to be responsible for their animals, to clean up after them, and to ensure that they do not pose a danger to residents. There are also gray areas that are still open questions under the law—must you allow a person to bring their animal to the pool where people are walking around barefoot? Must you allow the person to actually bring their animal into the pool itself? I have always taken the position that such an accommodation would step over the reasonableness hump, but I am not aware of any cases that have discussed this specific issue.
What we do know is that you cannot treat a disabled person differently because he has a medical need for an animal, and that means you cannot require him to pay a fee or to jump through any unusual hoops to qualify for his accommodation. However, that does not mean that you need to accept his disability claim on face value. If the person is not visibly disabled with an obvious need for the accommodation, the housing provider is entitled to make a reasonable inquiry regarding the applicant’s need for the accommodation, including requiring a letter from a medical professional laying out the factors discussed above. Housing providers need to be very suspicious of form letters that simply talk about the person’s desire to bring their animal on an airplane or that were obviously purchased online.
Any pet owner can pay a fee online for a doctor’s letter (written after a brief phone consultation) stating that the person is disabled and has a medical need for an animal. This is why you are entitled to ask questions about the doctor-patient relationship (how long has the doctor been treating the patient for this specific condition, and is he or she trained to treat such a condition)? Also, keep in mind that service animal vests and registration cards are entirely unofficial and can also simply be purchased online. When a client sends me a package from a person requesting an accommodation of the association’s pet rules, I always ignore the registration cards, forms, and photos of the pet wearing a vest—those are neither medically nor legally relevant. All that matters to the analysis is whether the doctor or therapist is willing to certify that the person is disabled, describing the nature of the condition and how it affects one or more daily life functions; that he or she is prescribing the animal as a “medically necessary” treatment for that disability; and that the treatment is required to afford the resident the full use and enjoyment of the premises. If that is established, and if there is not a very strong reason to doubt the veracity of the information, the inquiry is over, and the animal must be allowed.
Many people confuse the Fair Housing Act with the Americans with Disabilities Act (ADA) and assume that assistance animals must be specially trained. The ADA is an entirely separate law that governs, among other things, places of public accommodation, such as restaurants and stores. Under the ADA, to qualify as a service animal, a dog (or, in some cases, a miniature horse) must be specially trained to perform a function for the disabled person. That does not mean you cannot have a true ADA emotional support dog—the law recognizes that a dog could be specially trained to perform a function for a person with, for example, PTSD. But the ADA does not generally apply to housing communities (as they are not considered places of public accommodation), and so the training rules are irrelevant—as is the limitation that the animal be a dog or miniature horse. Instead, under the FHA, any treatment, including any animal, could conceivably be medically necessary, and therefore subject to the housing provider’s obligation to grant a reasonable accommodation and allow the animal onto the property.
Finally, people often wonder how competing disabilities are treated under the law. Why does a person with a medically-disabling animal allergy not have the same right to avoid animals as would a person who needs an animal for their own disability? This question has not yet been conclusively answered, but it is very likely that the right to have the animal would trump the right to avoid the animal. But, when this inevitable lawsuit happens, it will be fascinating to watch the debate.
Because the penalties for violating the FHA can be severe and can apply to directors personally, it is important that you allow your attorney to review all requests for assistance animals, and an association should only reject a request if you are completely comfortable that the person has not justified his medical need. Communities that take an unreasonably hard line against accommodation requests can be certain that a HUD complaint isn’t far behind.
Ryan D. Poliakoff
Partner of Backer Aboud Poliakoff & Foelster