The Fair Housing Act - The More Things Change, The More They Stay the Same

 We’ve written many times about the Fair Housing Act and assistance animals, most recently on April 29, 2013. Little did I know then that, just four days previously the U.S. Department of Housing and Urban Development had issued Notice FHEO-2013-01 addressing service animals and assistance animals for people with disabilities in housing and HUD-funded programs, a copy of which can be found here.

We’ve discussed in the past that the Fair Housing Act differs from the Americans With Disabilities Act (“ADA”), in that the ADA, with certain exceptions, typically does not apply to homeowners associations, which the Fair Housing Act often does. We’ve also discussed that the U.S. Department of Justice has published a fact sheet describing changes to the ADA rules relating to service animals. Those rules essentially said that a service animal was a dog that had been individually trained to do work or perform tasks for the benefit of an individual with a disability, and excluded emotional support animals.

In case there was any confusion about the applicability of the ADA rules concerning service animals applying to the Fair Housing Act, FHEO-2013-01 eliminates that confusion. It is clear from this notice that the obligation to provide reasonable accommodation in the application of rules or covenants, and what must be allowed by way of assistance animals, is much broader than the definition of service animals under the ADA. It specifically says that, for purposes of reasonable accommodation requests, the Fair Housing Act does not require an assistance animal to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can be assistance animals.

Without going into detail on what the notice provides, as you are able to read it for yourself, the notice does provide some guidance in the procedures to be followed, and questions to be answered in determining whether a reasonable accommodation must be provided. It also discusses whether, in a given case, a particular request can be denied because (1) a particular assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or because (2) the particular assistance animal would cause substantial physical damage to others’ property that cannot be reduced or eliminated by another reasonable accommodation.

All in all, the notice is fairly instructive, but does not really vary from what most practitioners have been saying all along - laws, rules, policies and practices must be modified to permit the use of an assistance animal as a reasonable accommodation in housing when its use may be necessary to afford a person with a disability an equal opportunity to use and enjoy their residence and the common areas.