HUD Issues New Guidance on Requests for Assistance Animals
February 28th, 2020 | By: Matthew I. Paletz, Esq.
On January 28, 2020 the Department of Housing and Urban Development (HUD) issued new guidelines on requests for assistance animals and how they relate to the obligations of housing providers. These are intended to replace the 2013 guidelines.
These types of requests are known as “reasonable accommodations” and are made by tenants who state they are disabled. Typically, tenants seek permission for their animal to reside with them, which in some circumstances may be contrary to existing pet policies of the property.
It is important to note that in these situations, these animals are not considered pets. Rather, they are classified as assistance animals of which there are two categories. The first are “service animals”, which have received specific training, the most common example being seeing eye dogs. The second are other animals, the majority of which are referred to as “emotional support animals”, that provide therapeutic emotional support or some other benefit to the individual. It is this second category that has been the subject of controversy and much consternation for landlords for many years.
The new guidelines attempt to assist landlords to differentiate between a tenant with an indiscernible disability who has a legitimate need for an assistance animal and a person without a disability who is looking to avoid fees associated with having a pet. Let’s face it, anything at this point is an improvement to this widespread tenant abuse, although do not expect these guidelines to put an end to it. At least though they now provide that if a tenant seeks to have its pet deemed an assistance animal in response to a termination of tenancy, an inference against good faith can be made.
Also, a positive issue that is addressed is the pervasiveness of online websites that sell certificates and other items like badges and vests for animals that claim to be “service animals,” yet have no training and in many cases were determined without any legitimate medical diagnosis or examination. The new HUD guidelines do make an effort to curtail this practice, as they state that merely obtaining a document from an online provider is insufficient on its own to have an animal be classified as an assistance animal.
Another encouraging development from these guidelines involves tenants who ask to have exotic or other extreme animals deemed as assistance animals. Some examples are boa constrictors, chickens, and kangaroos, all of which have actually been alleged to be assistance animals. Now, for them to be considered, the individual must show that the exotic animal can perform a specific task, above and beyond providing emotional support. HUD’s example – a capuchin monkey specifically trained to open a water bottle for a disabled individual.
Unfortunately, the new guidelines do little to allow a landlord to deny an aggressive dog as an emotional support animal based solely on breed. Hence, a landlord must still demonstrate that the specific dog at issue, not just the breed, poses some direct threat to persons or property, in order to have grounds to deny the accommodation request.
Likewise, the guidelines do little to deal with the overall low threshold of documentation needed from a medical provider to support a tenant’s request for an assistance animal. Although they attempt to provide more clarity on what may be deemed a disability as defined by law, they still allow for a letter to be written in a relatively vague fashion. The only meaningful change is the letter must now be submitted by a medical professional, whereas the previous guidelines allowed for a third party, even if they were not.
As with all things this year, the upcoming Presidential election in November looms large. If there is a new occupant in the White House, then these 2020 HUD guidelines may be subject to change again.
The Bottom Line: Obviously, there are many layers to the assistance animal conundrum and to the new guidelines that will need to be fleshed out over time. For now, the best thing is to have a fair housing policy in place especially as it relates to processing reasonable accommodation requests, and to consult with an attorney who is knowledgeable of how to deal with these convoluted matters.