Service Animals and the Fair Housing Act
By: Michael W. McBride, Attorney
The Fair Housing Act (“FHA”) prohibits discrimination in the sale, rental, and financing of residential housing based on race, color, national origin, religion, sex, familial status and disability. Although the non-discrimination concept embodied within the FHA is relatively straight forward, application of the law to real world situations is not always as clear cut. This article discusses the interplay between the FHA and service animals by examining a few of the more commonly raised questions when a potential tenant with a disability seeks housing along with his/her furry (or not so furry) companion.
What questions can be asked by a housing provider to a potential tenant with a service animal?
People can have disabilities that are not readily apparent to outside observers and different species and breeds of service animals often provide disability assistance that would not be readily understood or expected. Given these uncertainties, housing providers, especially those that do not regularly allow pets, can be hesitant to accept a potential tenant’s word that he/she needs the presence of a service animal in his/her rental unit without additional confirmation.
When verifying service animal status, housing providers are not given blanket authority to ask for and receive any amount of information they desire from the potential tenant. Housing providers can request reliable documentation establishing that a potential tenant has a disability (if the tenant’s disability is not readily apparent) and/or the service animal assists the potential tenant with management of his/her disability (if the need for the service animal is not readily apparent).
Housing providers should never ask a potential tenant to provide access to all of his/her medical records to analyze the veracity of a potential tenant’s contention that he/she has a disability and needs a service animal in a rental unit.
What types of animals are service animals?
The FHA does not limit the definition of service animal to certain species or breeds. Many types of animals can be considered service animals under the FHA, but this does not mean that a housing provider must accept all service animals in its rental units. A housing provider can still consider whether a particular service animal poses a direct threat to the health and safety of others on the property and/or would cause substantial noise or property damage issues. If a housing provider believes that a service animal might cause substantial problems for others or the property, the housing provider should try to make reasonable accommodations to limit or eliminate these issues. What is reasonable will depend on each particular set of circumstances.
Is a service animal considered a pet?
Simply put, NO! Service animals are not considered pets. This distinction requires housing providers to treat service animals differently from pets even though the service animal could be the same type and breed of animal as the very pets normally allowed or excluded from a housing provider’s rental units.
For example, housing providers cannot deny housing to a person with a disability and his/her service animal simply because it has a “No Pets” policy. Moreover, housing providers cannot charge pet rent, pet fees, pet deposits or any other additional charges for permission to have a service animal in a rental unit or to cover potential damages caused by a service animal.
How do service animals differ under the FHA and the Americans with Disabilities Act (“ADA”)?
Housing providers need to be conscious of the requirements of both the FHA and the ADA. While the FHA prohibits discrimination in housing, the ADA is much broader and prohibits discrimination against people with disabilities in employment, transportation, public accommodations, communications, and state and local government activities. On the other hand, the ADA is more limited in its definition of a service animal, which only includes trained service dogs.
Given these distinctions, housing providers are faced with different compliance requirements under the FHA and ADA. For example, housing providers that have rental offices open to the public should make sure those offices are equipped to accommodate people with trained service dogs, but need not allow emotional support animals or other species of service animals within the offices.
In order to ensure compliance with the FHA and ADA non-discrimination laws, housing providers should establish and follow their own non-discrimination procedures and policies, provide their employees with additional FHA and ADA training, and consult legal counsel when confronted with difficult situations and decisions involving service animals.