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verification for assistance animal

Where Do You Draw The Line On Verification For Assistance Animals?

As landlords and property managers, you walk a thin line with regard to accommodation requests involving assistance animals.  You obviously want to make sure that any tenant who needs an assistance animal is accommodated.  At the same time, you need to require enough verification to weed out anyone who is trying to take advantage of the Fair Housing Act.  As a fair housing attorney, I’m always curious about where to draw the line.  How much verification is too much?

That’s why a recent complaint filed by HUD caught my attention.  HUD challenged the reasonable accommodation and pet policies of a housing provider as having “impose[d] mandatory burdensome conditions on individuals with disabilities who request animal assistance.”  The landlord required tenants to fill out several forms, including an accommodation request form and a doctor’s prescription form.  So what bothered HUD?  Apparently, it was the doctor’s prescription form, which required the doctor to accept liability for any damage or injury caused by the animal in question.

As I am sure you can imagine, each of the doctors approached in the case above refused to sign any such form.  This requirement was seen by HUD as a violation of the Act on the basis of discrimination, given that the failure of the tenant to secure a doctor’s signature resulted in the denial of the request.

So what should you do?

Other than the guidelines I discussed in a previous post, do not, I repeat, do not attempt to assign liability to the prescribing doctor in a tenant’s request for an assistance animal. This action will likely be considered discriminatory under the Act, and could open you up to enforcement for an FHA violation.  Keep in mind that this doctor requirement is just one example of a recent burdensome requirement, and if any part of your reasonable accommodation process may be interpreted as placing an excessive burden on the requesting tenant, it is worth looking at.

The Differences Between Accommodations and Modifications Under The Fair Housing Act

Under the Fair Housing Act, property owners and management companies are required to ensure that all tenants have an equal opportunity to use and enjoy a property.  Generally, this means that management must grant reasonable accommodation and modification requests where necessary to afford a tenant the full use of the property.  But what is the difference between a reasonable accommodation and a reasonable modification under the Fair Housing Act?  Well, in a word—cost!

First things first though.  A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service.  A reasonable modification is a structural change made to the premises.  So, for example, a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy is a reasonable accommodation request; a request by a tenant in a wheelchair to install grab bars in the bathroom is a reasonable modification request.

In my experience, however, I have found that property owners and management companies are more interested in the cost aspect of reasonable accommodations and modifications.  Generally speaking, under the federal Fair Housing Act, management is responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification.  There are a few exceptions to the general rule regarding cost (which I will explore in a subsequent blog post), such as where the requested modification is one that should have been included in the unit or common use area when the property was constructed pursuant to the Fair Housing Act’s Design and Construction Guidelines, or where the property receives federal funding.

In closing, here are a few additional caveats regarding cost.  First, you may request that a tenant restore the modified portions of the interior of the unit to the previous condition only where “it is reasonable to do so.”  Contrast this from modifications to common areas of the property or the exterior of the unit, which the tenant is not required to restore to the original condition at the end of his or her tenancy.  And, while the tenant is generally required to pay for reasonable modifications made to common areas of the property, if the modification is made to a common area that is normally maintained by management, then management is responsible for the upkeep and maintenance of the modification as well.

Reasonable accommodation and modification requests can be tricky, and I would encourage property owners and management companies to consult with a local, experienced attorney regarding these requests—particularly given that other jurisdictions (such as Massachusetts) have enacted statutes placing the burden of the cost of a reasonable modification on the landlord.

The Do’s and Don’ts of Verifying Reasonable Accommodation Requests

One common question from landlords and property managers is whether they are permitted to request supporting information from tenants who have made an accommodation request under the federal Fair Housing Act.  The stakes for owners and property managers here are high—a single misstep can lead to a costly discrimination claim.

Thankfully, HUD—the Department of Housing and Urban Development —has given some pretty clear guidance on this issue.  Generally speaking, the inquiries that you may make—and the verifying information that you may require—depends on the degree to which the requester’s disability or the disability-related need for the accommodation is either obvious or known.  The following is an overview of the guidance that HUD has provided regarding responding to a reasonable accommodation request:

  • If the requester’s disability is obvious, or known to you, and the need for the accommodation is also readily apparent or known, then you may not request any additional information about the disability or the disability-related need for the accommodation.  Example:  An applicant with an obvious vision impairment requests an accommodation to a property’s “no pets” policy to allow the applicant’s seeing eye dog in his unit. Here, you may not require the applicant to provide any additional information about the disability or the disability-related need for the accommodation.   
  • If the requester’s disability is known or readily apparent, but the need for the accommodation is not readily apparent or known, then you may request only information that is necessary to evaluate the disability-related need for the accommodation.  Example: An applicant who uses a wheelchair makes a reasonable accommodation request to allow an assistance dog in her unit even though the property has a “no pets” policy.  Here, even though the applicant’s disability is readily apparent, the need for the accommodation is not obvious—thus, you may ask the applicant to provide information about the disability-related need for the dog. 
  • If the requester’s disability is not obvious, then you may request reliable disability-related information that: 1) is necessary to verify that the requester has a disability within the meaning of the Fair Housing Act; 2) describes the needed accommodation; and 3) shows the relationship between the requester’s disability and the need for the requested accommodation.  This information can usually be obtained directly from the requester, or from a medical professional, peer support group, non-medical service agency, or other reliable third party.  Under most circumstances, an individual’s medical records or detailed information about the nature of a person’s disabilities will not be necessary.

Not So Fast! Think Twice Before Denying An Assistance Animal Request Based On Breed

Landlords and property managers often wonder whether they can deny a resident’s fair housing accommodation request for an assistance animal because the animal is on a “restricted breeds” list.  The short answer is “no.”  Or, perhaps more accurately, “probably not.”

The federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq., requires that properties make reasonable accommodations in rules, policies, practices, or services when those accommodations are necessary to afford people with disabilities the equal opportunity to use and enjoy an apartment community.  Consequently, a property with a “no pets” policy must make an exception to that policy and grant a reasonable accommodation request to allow an assistance animal at the property when: 1) the resident making the request has a disability within the meaning of the Fair Housing Act; and 2) the resident making the request has a disability-related need for the assistance animal.

But wait, you say!  What if a resident is requesting an emotional support pit bull, and my community has a restricted breeds policy that prohibits dangerous breeds, such as pit bulls?  May the request be denied as “unreasonable”?  Put simply, probably not.  HUD (the U.S. Department of Housing and Urban Development, the agency charged with enforcing the Fair Housing Act) has made clear that “[b]reed, size, and weight limitations may not be applied to an assistance animal.”

But what about the threat that a dangerous breed, such as a pit bull, might pose?  According to HUD, any determination that an assistance animal poses a direct threat to the safety of the community (or would cause substantial physical damage to property) must be based on an individualized assessment of the specific animal at issue.  In other words, housing providers are not allowed to deny an assistance animal request simply because they believe that particular breeds—such as pit bulls—are dangerous.  Instead, the denial must be based on objective evidence about the specific animal’s actual conduct.  Therefore, consider requiring a certification stating that the animal does not have any aggressive, dangerous, or vicious propensities.