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Applying HUD’s New Guidance on Service and Emotional Support Animals

Posted by Jane F. Bolin, Esq. | Aug 19, 2020 | 0 Comments

HUD's new guidance on service and emotional support animals clarifies how homeowners' and condo associations can comply with the Fair Housing Act

According to the federal government's Fair Housing Act, housing providers, including homeowners' and condo associations, cannot discriminate against any individuals suffering from disabilities that limit one or more life activities.

The act also states that housing providers must make exceptions to rules and policies that might make it more difficult for individuals with a disability to enjoy living in their homes. In many cases, failing to make these exceptions and provide reasonable accommodation is illegal.

The result is that you cannot prohibit someone from renting a home or condo due to special privileges they might need because of a disability.

There has been some debate about how these rules affect a renter's ability to have animals, which is why HUD is providing new guidance and clarifying the definitions of service and emotional support/assistance animals.

Here's what association boards need to know about service and emotional support animals, along with how they affect homeowners' association rules.

What are service animals?

One aspect of the Fair Housing Act that required clarification was its position on service animals. In response, HUD asks HOAs and condo associations to look at the ADA's definition, which states that the animal must be a dog with specific training to complete tasks for an individual with sensory, physical, intellectual, psychiatric, or other mental disabilities. The work that the dog performs must be directly related to the individual's disability, such as a guide dog for someone with a visual impairment.

If it isn't readily apparent that the dog is a service animal —  such as situations where it's guiding a person with low vision, pulling a wheelchair, or assisting with a mobility disability — the housing provider can seek more information.

When asking for more information, HOAs should limit their inquiries to two questions: Do you have a disability that requires this animal, and what work is the animal trained to perform?

You aren't permitted to ask specific questions about the individual's disabilities, nor can you ask for documented proof. However, you can include a provision in the lease or rental agreement guaranteeing that this information is correct.

What are assistance and emotional support animals?

The rules on assistance and emotional support animals are a little different because they allow animals other than dogs (including cats, birds, hamsters, fish, and turtles) to live in the house. Reptiles, monkeys, farm animals, and non-domesticated animals do not count as emotional support animals. Still, they can be used as assistance animals if trained to perform a task that is necessary for the individual to enjoy living in the home.

Emotional support animals can provide therapeutic benefits and alleviate some symptoms associated with a disability. Their inclusion is protected under the Fair Housing Act and Section 504 of the Federal Rehabilitation Act.

When determining whether the individual has a disability that requires an assistance animal, HOAs and condo associations must be cautious when granting or denying a claim.

The first thing you can do is look for an observable disability. Generally, these disabilities are something that you can quickly notice, such as blindness, deafness, mobility issues, neurological impairments, and certain diseases like Parkinson's or cerebral palsy. In these situations, best practices say to grant the accommodation request because the individual has a disability.

Things get a little trickier when the disability isn't observable. You can request additional information proving disability in this situation, but the individual isn't required to provide you with a diagnosis.

The information presented can include a determination of disability from a government agency, a receipt showing the payment of disability benefits, proof of eligibility for disabled housing assistance, or a doctor's note.

You can include a provision in the lease or rental agreement that outlines penalties if this information is later proven incorrect, as well.

Documentation from a doctor or other healthcare provider is also helpful when determining if the animal is necessary for a particular disability. There must be a connection between the disability and the need to have the animal in the house, especially when the disability is non-observable and the animal's purpose is to provide emotional support.

What this means for HOAs with pet restrictions

The purpose of these guidelines is to grant clarity for HOAs and condo associations so they know whether or not to allow animals in their buildings with pet restrictions. This guidance should also prevent individuals from using the disability loophole to keep pets in homes and condos that do not allow them.

HOAs with pet restrictions will have to ask individuals with disabilities who wish to use a service or assistance animal to file a formal request for reasonable accommodation and provide any relevant information to support their claims. From there, the HOA is responsible for using this guidance to either accept or deny the request.

The pet restrictions will remain part of these HOAs and condo associations, as they are expected to handle every situation on a case-by-case basis.

Getting the advice you need

If you find yourself dealing with a complaint related to the Fair Housing Act or are uncertain how to proceed with a request for reasonable accommodation by an individual claiming a disability, it's best to seek professional assistance.

Peyton Bolin is a full-service real estate law firm that can help your HOA or condo association navigate any issues you encounter regarding service and support animals throughout Florida. Contact us for information on the best steps to take for the community as a whole while staying in line with the provisions set forth by the Fair Housing Act.

About the Author

Jane F. Bolin, Esq.

Founding Member, Managing Partner


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