Accommodations for Service Animals in Housing
Federal law, through the federal Fair Housing Act (“FHA”) and the Rehabilitation Act of 1973 (applies to housing that received federal funding assistance), may require accommodations by housing providers for service animals that provide assistance to individuals with a disability. This will include housing that may have a “no pets” policy or similar restrictions on the types of animals that residents may have in their housing units. An accommodation request under the FHA isn’t limited to a particular type of service animal, and so could require accommodations for such animals as snakes or birds. A reasonable accommodation request can be made to a landlord for rental property or to a condominium or co-op board.
A reasonable request for accommodation to a housing provider for a service animal must meet the following criteria:
- The person making the request must have a disability, which is a physical or mental impairment that substantially limits one or more major life activities; and
- The person has a disability-related need for the assistance animal
Both elements must be present before a housing provider has to consider providing an accommodation for the service animal. Looking at the first requirement, the housing provider cannot deny the request simply because he/she cannot readily determine that the requestor has a disability. The housing provider can ask for documentation from a reliable source if the disability is not apparent. Even if the disability is apparent, the housing provider could inquire about the need for a particular service animal if the connection between the disability and the need for the identified service animal is not apparent. Examples provided by the U.S. Department of Housing and Urban Development (“HUD”) of what could constitute proper documentation of a disability includes a letter from a physician, social worker, psychologist, or “other mental health professional”.
While housing providers can request further documentation to support an accommodation request if the request is not immediately apparent, the FHA does not permit the questioning of individuals with apparent disabilities. For example, a person with severe vision impairment could not be asked to demonstrate the need for a guide dog. In addition, the housing provider cannot demand to see the applicant’s medical records, or demand specific details about the applicant’s condition. An accommodation request can be denied if an applicant has failed to adequately support the request or has failed to respond to appropriate requests for information from the housing provider.
Assuming the individual has met the criteria in their request for an accommodation, the housing provider will need to provide an exception to its “no pet” policy or similar rules in the dwelling and all common areas, unless the housing provider can show that the service animal presents a particular risk of harm to others or the property of others or otherwise creates an undue burden. When the housing provider is considering whether to grant the accommodation, he/she needs to evaluate the particular service animal in question and not other criteria, such as a particular breed or size. However, if the animal in question poses a risk of harm to others or would otherwise create a undue financial burden for the housing provider, the request can be denied. An example of when an accommodation might be denied could involve an animal with a history of attacking people or which poses a health risk for others. The presumption in the law is that the housing provider should grant the accommodation request, and so the housing will need to be able to demonstrate a legitimate basis for denying a request.
For real estate professionals, the determination on whether to grant an accommodation request for a service animal needs to be made by the housing provider and not the real estate professional. While the real estate professional could request documentation from the applicant in support of the accommodation request, this information should always be gathered at the direction of the housing provider. In addition, the real estate professional should always make it clear to the applicant that the request is being made to the housing provider, not the real estate professional.