The Fair Housing Act (“FHA”) requires that a housing provider make reasonable accommodations for a person with a disability.  Reasonable accommodations include allowing assistance animals in housing. 

Assistance animals are not pets and can be divided into two categories: (1) service animals; and (2) other animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities (referred to hereinafter as “support animals”).

The Americans with Disability Act (“ADA”) defines a 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.”  28 CFR §35.104.  The definition further states that emotional support, well-being, comfort, or companionship animals do not perform work or tasks.  Id.  Accordingly, only trained dogs and miniature horses[1] can be service animals.  Support animals are precluded from qualifying as a service animal under the ADA.

The U.S. Department of Housing and Urban Development (“HUD”) issued a notice in 2013 addressing the ADA’s definition of service animal and the use of support animals under the FHA, amongst other items. The notice explains that for the purposes of reasonable accommodation requests, neither the FHA or Section 504 requires that a support animal be individually trained or certified. While dogs are the most common type of support animal, other animals can also act as support animals. See notice here.

While assistance animals can drastically improve the quality of life for a person with disabilities, use of support animals poses problems for housing providers attempting to determine if a reasonable accommodation request is proper.  And, because of the lack of guidance and easy accessibility to an internet certificate, many individuals are misinformed and take advantage of the law by electing to call their animal a service or support animal so they can bring it into a public place or avoid paying a pet deposit when renting a home.

On January 28, 2020, HUD issued a new Assistance Animal Notice (“Notice”) which is intended to provide guidance to housing providers so they may comply with the Fair Housing Act when a person requests an animal to live in housing for assistance with a disability. 

The Notice is comprised of two sections: (1) Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act; and (2) Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.

The first section starts with a discussion of the law regarding disabilities and reasonable accommodations.  The section then provides a step-by-step analysis to determine if the animal is a service animal; if not a service animal, then what is a reasonable request for a support animal; criteria to assess whether to grant the requested accommodation; discussion regarding the type of animal; and other general considerations.  Included in the step-by-step analysis are clarifications for assistance animals under the FHA.  Some of the more significant clarifications are:

  1. It is not necessary to submit a written request (the request can be oral) or use the words “reasonable accommodation,” “assistance animal,” or any other special words to request a reasonable accommodation. 
  2. A reasonable accommodation request does not have to be submitted by the individual with the disability; it may be submitted by others on behalf of the individual.
  3. A person with a disability may make a reasonable accommodation request at any time, and the housing provider must consider the reasonable accommodation request even if the resident made the request after bringing the animal into the housing unit.
  4. The housing provider should make a determination regarding the accommodation promptly, which is generally within 10 days of receiving documentation.
  5. The applicant’s failure to receive disability benefits does not mean that the individual does not have a disability.
  6. Documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.
  7. A support animal typically constitutes an animal that is commonly kept in a home for pleasure (e.g. dog, cat, small bird, etc.).  If the individual requests a unique animal, the burden is on the requestor to demonstrate a disability-related therapeutic need for the unique animal.
  8. Lack of documentation by the individual requesting an assistance animal may be reasonable grounds for denying an accommodation.

The second section is a guide for best practices for documenting an individual’s need for an assistance animal.  This section contains information which can assist the individual requesting a reasonable accommodation, as well as the health care professional, with providing the pertinent information to the housing provider.  This section specifically notes that “housing providers may not require a health care professional to use a specific form (including this document), to provide notarized statements, to make statements under penalty of perjury, or to provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments.”

Real estate practitioners, especially property managers, should become intimately familiar with the Notice and implement the prescribed step-by-step analysis into their practice.  The Notice may be found here.


[1] Although not included in the definition, a miniature horse may also act as a service animal.