On January 28, 2020, the U.S. Department of Housing and Urban Development (“HUD”) released guidance for individuals requesting an accommodation for an assistance animals and housing providers (which includes community associations) responding to these requests under the Fair Housing Act (“FHA”). The recent guidance from HUD does not expand or alter housing providers’ obligations under the FHA or HUD’s implementing regulations. It is simply a tool for housing providers and persons with a disability to use at their discretion. The recent guidance also provides best practices for addressing requests for reasonable accommodations to keep animals in housing where individuals with disabilities reside or seek to reside. According to HUD, the goal was to make it easier for housing providers and individuals requesting an accommodation to better understand what legal steps need to be taken to secure a reasonable accommodation, especially when discussing disabilities that are not readily discernable. Dawn Bauman, CAE from the Community Associations Institute in Washington, D.C. recently provided some highlights from the HUD guidance that are applicable to community associations:
Although individuals with a disability are not legally required to use the words “reasonable accommodation,” “assistance animal,” or any other special words to officially request a reasonable accommodation under the FHA, HUD encourages individuals to do so in order to avoid miscommunications with housing providers. This means that boards and property managers need to remain vigilant when reviewing special requests from residents.
HUD recognizes, however, that certain impairments, especially those that may form the basis for a request for an emotional support animal, may not be observable. In these cases, HUD clarified that housing providers (again, including community associations) may request information regarding both the individual’s disability and the disability-related need for the animal. But the housing provider is still not entitled to know an individual’s diagnosis.
Documentation from the Internet
Some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. Under the FHA, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious or otherwise known. HUD pointed out that in its experience, such online documentation is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal. This means that a community association could probably take the same position.
By contrast, there is an increasing number of legitimate, licensed health care professionals delivering remote services over the internet. HUD confirmed that one reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.
Type of Animals
HUD also clarified the types of animals that may be associated with emotional support or other assistance. The recent guidance differentiates between animals that are typically found in households (i.e. dogs, cats, etc.) and “unique” animals that do not typically live in a residential home, such as livestock. An individual seeking a reasonable accommodation for a “unique” animal will face a “substantial burden” in demonstrating how the “unique” animal directly meets a disability-related need.
In sum, the recent HUD guidance is positive for community associations because it helps clarify some areas of uncertainty regarding these types of issues. However, if boards and property managers are still unsure about a particular accommodation request, they should continue to seek the advice of their association attorney.