Landlords and HOAs with no-pet policies now have significantly more flexibility to inquire about assistance animal requests following new guidance from the Department of Housing and Urban Development.
In 2013, the Department of Housing and Urban Development (“HUD“) issued guidance to housing providers covered by the Fair Housing Act (the “FHA“) warning them that asking too many questions of a tenant or owner requesting an accommodation for an assistance animal may be treated as discrimination. This guidance sparked a cottage industry of online providers willing to provide a letter attesting to the need for a service animal in exchange for a fee, and housing providers with a no-pet policy were left with the choice of accepting virtually all accommodation requests or risking litigation.
Last week, HUD issued new guidance to housing providers specifically addressing concerns with internet-based documentation. According to the new guidance, documentation from websites selling “ESA Letters” to virtually all applicants is not, by itself, sufficient to show a disability or disability-related need for an assistance animal. Landlords and HOAs who receive a request for an assistance animal may insist on documentation more specific to the individual requester’s disability and, especially, their disability-related need for an assistance animal.
The new guidance also addresses “unique” assistance animals. HUD’s 2013 document treated all animals alike, so long as the requesting party was able to show a disability-related need for the assistance animal. This guidance resulted in turkeys, miniature horses, and even kangaroos being kept as assistance animals. Under HUD’s new guidance, an individual can still request any animal as an assistance animal, but if the animal isn’t a type commonly kept in households, the requester must show a disability-related need for the specific type of animal.
While this guidance gives housing providers greater flexibility regarding assistance animals, caution is still advised. HUD’s guidance emphasizes that landlords and HOAs are not entitled to know a person’s diagnosis, only that the person has a disability. Further, the fact that documentation was received via the internet does not necessarily mean it is insufficient, especially as more and more reputable, legitimate healthcare providers deliver services remotely.