The Federal Fair Housing Act 42 USC 3601 (the “FHA”) requires housing providers to modify or make exceptions to policies governing animals when it may be necessary to permit persons with disabilities to utilize animals. The FHA prohibits discrimination in housing based on race, color, national origin, religion, sex, familial status, and disability. Emotional support animals
A condominium association, a homeowner’s association, and a cooperative association are considered a housing provider under the FHA. As such, these associations need to ensure that they comply with the requirements contained in the FHA. This is especially true when it comes to issues related to service animals, support animals, and assistance animals. This area of Association Law is a minefield for the unwary Association and its Board of Directors.
Reasonable Accommodations for Service and Emotional Support Animals
Under the FHA, persons with disabilities may request a reasonable accommodation for service animals and other types of assistance animals, including support animals. A reasonable accommodation request is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common-use spaces. This exception or adjustment includes Declaration Restrictions and Association Rules and Regulations that include pet restrictions.
Emotional support animals (ESAs) are essentially a subset of support animals under the FHA. Support animals are not “pets.” In January of 2020, the Federal Department of Housing and Urban Development (HUD) put out an “FHEO Notice” titled the (Fair Housing and Equal Opportunity) FHEO 2020-01. FHEO 2020-01, which provides detailed instructions and best practices for housing providers on how to handle an owner, tenant, or prospective tenant’s reasonable accommodation request for an emotional support animal (ESA).
In order to qualify for a reasonable accommodation for an ESA under the FHA, the person making the request (the Applicant) must have a disability, which the FHA defines as a physical or mental impairment that substantially limits one or more major life activities. The determination as to whether or not the Applicant has a disability, as defined under the FHA, can be extremely complex. If the Association has any question as to whether or not the Applicant has a disability as defined by the FHA, then they should immediately seek the advice of the Association’s attorney.
Once it is determined that the Applicant has a disability, the Association will then need to determine the relationship or connection between the disability and the need for the assistance animal. If the Association has any questions regarding the connection between the disability and the need for the assistance animal, then they should immediately seek the advice of the Association’s attorney.
The Importance of Following FHA Guidelines
If the Association fails to follow the procedures set forth in the FHEO 2020-01, then the Association, the Board of Directors, the Manager, the Management company may all be subject to the civil penalties as defined under 23 CFR 100, which include a $25,597.00, fine for first offenders. These penalties are in addition to other actual damages, possible punitive damages, attorney fees, and costs.
