Assistance Animals – A Reminder on What is Required

On July 15, 2015, HUD charged the owners and manager of Viking Villas, a 36-unit apartment complex in Sioux Falls, SD, with a violation of the Fair Housing Act for refusing to grant a reasonable accommodation to a disabled resident by not permitting the resident to have an assistance animal.

Facts of the Case

1. According to her certified Physician Assistant (PA), the resident had a disability related need for an assistance animal. The PA issued a hand-written prescription dated December 9, 2013, that stated. “Due to mental illness and disability, patient requires use of companion animal for emotional and psychiatric stability. Please accommodate this request.”
2. The resident’s original lease contained a no-pet policy.
3. On or around January 7, 2014, the resident called the Manager to request an exception to the property’s no-pet policy in order to obtain an assistance animal. The manager said “no.”
4. The resident told the manager, “I have a prescription for a companion animal right here in my hands,” or words to that effect, but the Manager replied that she did not want to see it.
5. When told that it was a prescription for a dog, the manager stated, “If you feel you will still need that prescription filled, you’ll need to give your 60-days notice because there are absolutely no animals allowed.”
6. The property had no written policy for reasonable accommodation requests – including requests for assistance animals – in January 2014.
7. On January 24, 2014, the resident filed a complaint with HUD, and the owner of the property was notified of the complaint on February 1, 2014.
8. The resident purchased an assistance animal, Libby, on or around June 16, 2014, and took the animal (a Shih Tzu/Lhasa Apso mix) to the property.
9. On or around June 17, 2014, the resident sent management a written reasonable accommodation request for an assistance animal by certified mail, attaching a copy of the PA’s prescription.

• Shortly thereafter, the Manager hand-delivered two documents to the resident. The first document was entitled “RE: Companion Animal Request, Received 6/20/2014.” It included a “Companion Animal Accommodation Agreement.” If required that the resident complete the form and “attach the verification of your animal’s proper current inoculations from the vet, and verification of your animal’s licensure with the city…” After this information was provided, management indicated that they would provide written notice regarding approval.
• The second document was entitled “Companion Animal/Pet Policy Agreement.” The terms of the agreement included overly burdensome and discriminatory provisions, according to the HUD complaint. The provisions included:
  1. Allowing the Landlord to revoke approval of assistance animals at their “sole discretion;
  2. Requiring annual submission of evidence that the animal is receiving proper veterinarian care;
  3. Imposing size, weight and breed limitations on assistance animals;
  4. Requiring that assistance animals be more than six months old at the time of move-in;
  5. Allowing the Landlord to enter the apartment with notice to inspect for damage suspected to have been caused by the assistance animal;
  6. Imposing a $25 fine for a one-time failure to immediately remove waste and a requirement that a tenant must have a “doggie bag” available for inspection when outside with her dog; and
  7. Allowing the Landlord to evict tenants for failure to comply with any of the eight provisions of the agreement.
• The resident refused to sign the Agreement.
• Management designated the grass outside the resident’s window as the spot where she could allow her dog to toilet, and would search the grassy area outside her window on a near-daily basis. Management also began to harass the resident about the dog as well as other issues, such as doors and windows allegedly slamming.
• The resident feared that if she was evicted, even for an illegal reason, she might lose her Section 8 Voucher. Although she would have preferred to stay at Viking Villa, the resident felt compelled to give her 30-day notice to vacate the property, and moved out in late 2014.

Legal Allegations

In the suit, HUD is alleging that the Respondents violated the FHA by discriminating against the resident on the basis of disability in the terms, conditions, or privileges of the rental of a dwelling, by refusing to grant the resident’s requests for an accommodation to allow the resident to keep an assistance animal in her apartment. The suit also states that the respondents imposed mandatory, burdensome, and discriminatory conditions on the resident due to her disability, and that the respondents violated the law when they retaliated against the resident. HUD is requesting that the following penalties be imposed on the respondents:

1. A declaration that the respondents have violated the Fair Housing Act;
2. Enjoins the respondents from future discrimination due to disability;
3. Award monetary damages to fully compensate the resident for her damages; and
4. Assess a civil penalty and award additional relief that may be appropriate.

This case provides a clear reminder to housing operators that assistance animals are not pets, and that such animals must be permitted for disabled persons in need of such animals, unless such an accommodation is, for some reason, unreasonable. HUD issued FHEO Notice 2013-01 on April 25, 2013, which stated in part, “An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” The Notice further states that assistance animals do not need to be individually trained or certified, and that animals other than dogs can be assistance animals.

HUD has also made it clear that the definition of “service animal” contained in ADA regulations (dogs and miniature horses), does not limit housing providers’ obligations to grant reasonable accommodation requests for assistance animals under either the Fair Housing Act or Section 504 of the Rehabilitation Act of 1973 (for Federally assisted properties). Under these laws, rules, policies, or practices must be modified to permit the use of an assistance animal as a reasonable accommodation in housing when its use may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling and/or the common areas of a dwelling.

Currently, disabled individuals are filing more than 50% of fair housing complaints. Owners and managers must be fully aware of the rights of the disabled in order to avoid potential liability in this area.