HUD Provides More Guidance on Emotional Support Animals but Little Help for Association Boards Dealing with Accommodation Requests
Condo association attorneys had long been anticipating new guidance from the Department of Housing and Urban Development (HUD) dealing with emotional support animals. That guidance was finally issued in January 2020, but it fell short of the stricter requirements practitioners had wanted.
Condo boards and managers are all-too familiar with the difficulty of dealing with owners’ requests for accommodations under the Fair Housing Act, allowing them to have animals they say they need to manage their emotional disabilities. The law generally requires boards to approve these requests, even if that means waiving association rules restricting pets or prohibiting them entirely.
According to HUD, 60 percent of all the Fair Housing accommodation complaints the agency receives involve requests for service and emotional support animals. (Service animals are trained to assist people with physical disabilities; support animals typically help people whose disabilities may not be visible.) HUD says that most of the housing discrimination charges the agency files against housing providers are for improperly denying accommodation requests for disabilities “the housing provider cannot readily observe.”
That’s the crux of the emotional support animal problem for boards: How to distinguish between owners who legitimately need emotional support and those who are simply trying to skirt association rules that prohibit them from owning pets they want.
“Customary” and “Unique”
The HUD guidance takes a couple of modest swings at this problem. The major change is a more precise and more restrictive definition of animals that may qualify as service or support animals. The definition distinguishes between “customary” animals and “unique” ones. Requests for customary animals (such as dogs, cats, small birds “and other small, domesticated animals traditionally kept in the home for pleasure rather than commercial purposes”) must typically be granted as long as the applicant demonstrates an emotional disability related to the animal requested.
For applicants seeking “unique” animals (reptiles ‘other than turtles’, barnyard animals, monkeys, kangaroos and “other non-domesticated animals”) the HUD guidance sets a slightly higher legal bar. These applicants must demonstrate “a disability-related therapeutic need” for the specific animal or type of animal they seek.
This definition may reduce requests for boa constrictors and kangaroos, but it won’t make it any easier for associations to challenge the most common requests (for dogs, cats, etc.), even if they suspect that these requests are dubious.
The guidance did not tackle what seems to be the major source of abuse in emotional support applications: The ease with which people can obtain letters from medical professionals (a broad category not limited to medical doctors, psychiatrists or psychologists) certifying that they have a disability that requires an emotional support animal.
Internet Certifications
There are dozens if not hundreds of internet sites where owners can pay $29.99 and obtain a letter certifying that the animal they seek is an emotional support animal, and boards have rightly questioned the validity of some of these certifications. Acknowledging the problem, the HUD guidance clarifies that simply certifying that an animal qualifies as a “support animal” is not in itself enough to support an accommodation request.
That doesn’t help much. Because the pandemic has made on-line medical services the norm, it has become even more difficult now to question on-line disability certificates. We had hoped the new guidance would establish at least minimum standards for these certifications, for example, requiring that medical providers interview applicants by phone and requiring documentation more personalized than the boilerplate certificates many on-line sites issue automatically to virtually any applicant who requests one. The HUD guidance doesn’t do that. On the contrary, it emphasizes that an on-line certification is acceptable if it comes from a medical professional who has personal knowledge of the individual and who submits a letter confirming the individual’s disability and/or need for an animal
The HUD guidance doesn’t really change the legal landscape at all. It trims the edges a bit and removes a few weeds but it leaves the playing field pretty much as it was, which is to say, tilted decidedly in favor of applicants seeking accommodations, and against associations frustrated by their inability to challenge them.
Reviewing Accommodation Requests
The guidance restates and emphasizes the key principles that should govern the treatment of accommodation requests, and those are worth summarizing here:
1. Assistance animals aren’t pets and aren’t subject to fees and other restrictions associations may impose on pets in their communities.
You can charge an owner for damage their support animal might cause, but you can’t impose a fee against damage the animal might cause in the future.
You can’t restrict the breed, size, or number of support animals, even if you impose those restrictions on other pets. A resident who documents the need for two or more support animals may be allowed to have them.
You can’t restrict the movements of support animals, for example by barring them from elevators or common areas or requiring them to be walked off-site. Basically, you must allow a support animal to go anywhere its owner goes.
2. You can’t require applicants seeking accommodations to use specific language or specific forms – including and especially forms that say the information is being submitted “under pains and penalties of perjury.” The guidance notes that “it is not necessary [for applicants] to submit a written request or to use the words “reasonable accommodation,” “assistance animal,” or any other special words to request a reasonable accommodation under the FHA….”
Boards can offer forms and ask owners and medical professionals to use them, but they must approve a request that provides all the required documentation, even if it is scrawled on the back of an envelope. And the forms that boards offer should state clearly that applicants aren’t required to use them.
3. Boards must respond promptly to accommodation requests. We used to advise boards to act within 14 days, but the HUD guidance suggests that a “reasonable” response time is usually within 10 days. The guidance doesn’t require a response within that time frame, but it does suggest that anything longer than 10 days might not be considered reasonable. If the board isn’t scheduled to meet before that 10-day deadline, we suggest discussing the request via e-mail or on a conference call. Adhering to the board’s meeting schedule isn’t an excuse for failing to provide the “prompt” review the HUD guidance requires.
4. Boards can’t reject “after-the-fact’ accommodation requests. The HUD guidance says specifically that residents can make accommodation requests “at any time” and housing providers must consider those requests, even if they are submitted after the applicant has already acquired the animal he/she is requesting.
This underscores a critical point for boards dealing with accommodation requests: You can’t reject them based on technicalities. If a resident doesn’t provide all the information the board demands, you have to explain the deficiencies and give the resident a chance to correct the submission. Residents have to document their accommodation requests, but boards have an obligation to educate them about how to do that.
Equally important, boards should treat accommodation requests seriously and respectfully. Disparaging comments, such as: “You knew this was a no-pet community – you shouldn’t have moved here,” or, “We know you’re not really disabled,” could be used as evidence supporting a discrimination complaint against the association.
Just because you can’t see an emotional disability doesn’t mean it doesn’t exist. And just because you have good reason to doubt the validity of an accommodation request doesn’t mean you should fight it. Your odds of winning that legal battle are slim, at best, and the new HUD guidance doesn’t change that calculation. It was difficult to challenge accommodation requests for support animals before the guidance was issued, and it still is.
Written by
Matthew Gaines | mgaines@meeb.com
Pamela Jonah | pjonah@meeb.com