Emotional Support Animals and Federal Housing:

Rights and Responsibilities in an Emerging Area of Law

Authors: Attorney Andrew W. Erlandson & Law Clerk Elizabeth L. Spencer

Phone: (608) 257-0945

Email: aerlandson@hbslawfirm.com

For years, service animals have been widely accepted by housing providers and other public accommodations for their obvious benefits to individuals with physical disabilities.  In recent years, a tenant’s right to keep an “emotional support” animal in public housing has received increased Fair Housing attention and spawned litigation pursued by the Department of Housing and Urban Development (HUD)

Are Emotional Support and Service Animals the Same?  No.  Service animals are individually trained to do work or perform tasks for people with disabilities. Under the Americans with Disabilities Act (ADA), trained service dogs may accompany a person with a disability in any place the public normally goes. An emotional support animal, on the other hand, provides its owner a therapeutic benefit through companionship. The law does not require that emotional support animals be specially trained, and to-date, they are not permitted access to all places of public accommodation. Also, emotional support animals need not be dogs.  Readers may recall the emotional support duck who last year gained internet fame on a commercial flight.

Under federal fair housing law, an emotional support animal is generally entitled to a waiver from an otherwise applicable pet policy, if necessary to afford an individual with a disability an equal opportunity to enjoy a dwelling.[1] What constitutes a “reasonable accommodation” gets determined on a case by case basis; generally speaking, a request will be deemed reasonable if it does not impose an “undue financial and administrative burden” on the housing provider or constitute a “fundamental alteration” of the housing program.[2]

Litigation will arise when a project owner denies a tenant’s request for a reasonable accommodation.  Usually, then tenant – or HUD on the tenant’s behalf – will bring a discrimination claim under Title 42. Courts consider a number of factors to determine whether a reasonable accommodation is warranted, including whether:[3] (1) the tenant is disabled within the meaning of the FHA, (2) the tenant requested a reasonable accommodation, (3) the requested accommodation was necessary to afford the tenant an equal opportunity to use and enjoy dwelling, (4) the unit owner refused the requested accommodation.[4]  In some cases the tenant has been required to demonstrate that the owner knew or should have been aware of the plaintiff’s disability.[5]  Delayed responses to requests for accommodations can also prompt a tenant complaint.

What’s a Landlord to Do?   Housing owners are not without protections under the law.  For example, landlords have the right to adopt and enforce a pet policy, and to evaluate any request for waiver.  And, if a tenant’s disability-related need is not readily apparent or already known to the owner, the owner may request medical documentation reasonably necessary to substantiate the tenant’s claim that the subject animal provides support which alleviates symptoms or effects of an existing disability.[6]  Finally, if a putative support animal poses a direct threat of harm to others, the owner may deny a waiver request.  Note, however, that the mere possibility that an animal may pose a threat of harm to others is not a sufficient basis to deny a waiver request.  Housing providers should evaluate each waiver request individually, based on an animal’s actual conduct – not speculation or fear.[7]

If you are concerned about your compliance with or rights under federal housing regulations, contact Hurley, Burish and Stanton, S.C. to speak with Attorney Andrew Erlandson.
[1] Prindable v. Ass’n of Apartment Owners of 2987 Kalakkaua, 304 F. Supp. 2d 1245, 1254 (D. Haw. 2003).
[2] Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (11th Cir. 2008).
[3] See, Hawn v. Shoreline Towers Phase 1 Condominium Ass’n Inc. 347 Fed. App’x 464, 467 (11th Circ. 2009); DuBois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005).
[4] Hawn  at 467.
[5] DuBois at 1179.
[6] FHEO Notice: FHEO-2013-01 at page 2.
[7] Id.