On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) released guidance on the process of requesting an accommodation under the federal Fair Housing Act (FHA) for a comfort pet. The previous guidance put out by HUD (FHEO-2013) is now replaced with this new guidance report. The FHA provides that disabled persons may request a reasonable accommodation from their housing association for service animals or support animals. The new guidance, referred to as the “Assistance Animal Notice,” seeks to provide greater clarity as to the type and amount of information that a provider may request to support such a request and sets forth best practices for housing providers for complying with the FHA when assessing requests for reasonable accommodations to keep animals in housing. In addition, the document includes guidance for homeowners on how to document a request for a reasonable accommodation for an assistance animal.
An experienced Florida condo attorney can assist you in obtaining the necessary reliable documentation and submitting your request for an accommodation. As the new guidance (a detailed 20-page document) makes clear, condo Associations are entitled to specific information in support of an accommodation request. Failing to provide adequate information — or providing too much information (which increases the risk of inconsistencies) — can result in a delayed or negative outcome.
While some in the legal field might say that the new guidance actually makes it harder for people to obtain accommodations for assistance animals, according to HUD, the guidance is being provided both to “help housing providers distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animal and a person without a disability who simply wants to have a pet or avoid the costs and limitations imposed by housing providers’ pet policies” and to help disabled persons who request a reasonable accommodation to use an assistance animal in housing. Housing providers have complained that the lack of clarity in the FHA allows for abuse and imposes an unfair burden on property owners.
Per HUD Secretary Ben Carson, the new guidance “responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”
Importantly, the notice makes clear that assistance animals are not pets. They are animals that “do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.” There are two types of assistance animals: service animals; and support animals, defined as “other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.” The guidance describes the process of seeking an accommodation for animals commonly kept in households (dogs, cats, birds), as well as “unique” animals, such as a capuchin monkey (which can perform tasks for a person with paralysis caused by a spinal cord injury).
HUD’s new guidance sets forth specific criteria for assessing whether to grant the requested accommodation. As a best practice, the Association may start with a determination of whether the individual has an observable disability or a disability that is known to the Association. Observable impairments include:
If the disability is observable or already known to the Association, the next step is to determine if there is a connection between the person’s disability and the animal. However, If the disability is “non-observable” or not previously known to the Association, the housing provider may request information regarding both the disability and the disability-related need for the animal. Notably, however, the guidance states that “housing providers are not entitled to know an individual’s diagnosis.” What Associations are entitled to is information that “reasonably supports” that the person seeking the accommodation has a disability and a disability-related need. Lastly, if the animal is “unique,” meaning one not commonly kept in households, the individual has a “substantial burden” of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.
Condo Associations are entitled to reliable verification of an owner’s need for an assistance animal and can require documents other than an online certification. The new guidance cautions against obtaining documentation from the internet, stating that such information “is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”
The new guidance also states that housing providers may not require a health care professional supporting a request for accommodation to use a specific form, provide notarized statements, make statements under penalty, provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments. However, if the housing provider has reason to question the person’s disability or need for the animal, the housing provider is allowed to conduct a meaningful review. This usually involves requests for more and more information from the individual. In many past cases, housing providers will use this as an opportunity to get you to do or say something inconsistent so they can deny your request.
If you need assistance with getting your emotional support animal approved in pet-restricted housing, we welcome you to contact us at (954) 966-3909. We help you with the accommodation request from start to finish to make sure it gets done correctly and that there is written documentation of the approval so you are protected in case the Board or Management changes. We also make sure to protect your privacy with regard to your confidential medical information.
We serve the legal needs of individual condominium owners, home owners and cooperative owners in resolving disputes with their associations throughout Florida, including Broward, Dade and Palm Beach Counties, as well as Miami, Naples, Brickell, Hollywood, Davie, Pembroke Pines, Hallandale, Sunny Isles, Aventura, North Miami, Boca Raton and West Palm Beach. We never represent the associations or their boards so we always know who we are fighting for.
Please note that free case evaluation is by telephone and does not include legal advice. Office consults with legal advice are available on a flat fee basis.