It's been almost a decade since the U.S. Department of Housing and Urban Development (“HUD”) last issued guidelines regarding assistance animals. Since then, use of assistance animals has increased considerably, as have efforts by some to exploit ambiguities, leading to news stories about emotional support peacocks and kangaroos. In the absence of clear guidance from HUD, HOAs have struggled with issues relating to accommodation requests involving assistive animals, such as the type and amount of documentation that can be required, particularly where a disability or a disability-related need for an animal isn't clear. The issue has been a fertile ground for complaints and lawsuits. In fact, HUD says almost 60% of federal Fair Housing Act (“FHA”) complaints concern denial of reasonable accommodations and disability access. Of those, complaints regarding denial of assistance animal requests are among the most commonly received by HUD and are “significantly” increasing.
Fortunately, HUD has recently issued new guidelines for service animals and assistance animals under the FHA, which replace HUD's prior 2013 guidelines. The new guidelines provide more clarity about acceptable assistance animals and about the application process through which requests for their use are reviewed. While the new guidelines do not modify present federal law or regulations, their use is “strongly” encouraged by HUD and will hopefully improve the application process for both applicants and HOAs. The new guidelines are broken into two sections: (1) “Assessing a Person's Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act”; and (2) “Guidance on Documenting an Individual's Need for Assistance Animals in Housing.”
The first section primarily sets forth best practices regarding determining if the animal in question qualifies as a “service animal” under federal law or is otherwise a support animal or other type of assistance animal that needs to be accommodated. The guidelines provide an outline of acceptable inquiries of applicants, depending on whether disabilities are readily observable. Details are also provided regarding when and in what manner accommodation requests can be made. Of note is HUD's observation that in its experience, documentation (certificates, registrations, licensing documents, etc.) purchased from internet websites “is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.” The guidelines also differentiate between animals traditionally kept in households and “unique” animals. For approval of the latter, the requestor has the “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” The guidelines helpfully point out that “reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.”
The second section is intended to help disabled individuals document their need for an assistance animal. This includes helping them explain to their health care professionals the type of information HOAs may need to evaluate their request, particularly when their disability or disability-related need for an accommodation is not readily observable. The section also notes that HOAs cannot require health care professionals to use a specific or notarized form, verify statements under penalty of perjury, or provide a diagnosis or other detailed information about the applicant.
Kriger Law Firm routinely assists its community association clients throughout Southern California on assistance animal issues. We encourage you to review the new HUD guidelines in detail. The new HUD guidelines are available online for download at: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf