Assistive Animals in Housing Accommodations

• Citation: Vol. 32 No. 3
• Publication year: 2014
• Author: By Phyllis W. Cheng and Mallory Sepler-King

Assistive Animals in Housing Accommodations

By Phyllis W. Cheng and Mallory Sepler-King

©2014 All Rights Reserved.

I. INTRODUCTION

Using animals to assist people with disabilities is a well-established practice. Many people use animals in some capacity to help manage or alleviate the symptoms of physical or psychological disabilities. Two different categories of assistive animals are defined under the law: service animals and support animals, also called "companion animals" or "emotional support animals." A service animal, which must be accommodated by public accommodations, is defined under the Americans with Disabilities Act ("ADA")¹ as "dogs trained to perform a task to benefit an individual with a disability."² Guide dogs and signal dogs, which assist with hearing impairments, fall under the service animal category.³ Under the ADA, in addition to dogs, use of a miniature horse by an individual with a disability is also permitted if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.⁴

In contrast to service animals, and due in part to their lack of training, emotional support, comfort or companion animals are not required to be accommodated by public accommodations under the ADA.⁵ Nonetheless, support animals can, by their mere presence, provide comfort to their owners by lowering anxiety or improving the mental state of the owner. In this article we will provide an overview of fair housing laws as they apply to assistive animals, and guidance on how to apply these laws most effectively in cases regarding requests for housing accommodation of a support animal.

II. ASSISTIVE ANIMALS IN HOUSING

The distinction between whether an animal is a service or support animal can be subtle. A dog will qualify as a service animal if it performs a specific task, such as retrieving dropped items, reminding individuals to take medicine, providing safety checks for individuals with post-traumatic stress disorder, and interfering to stop damaging behavior. Recognition of a symptom of the owner's disability, coupled with a response by the animal, are the key elements.⁶ This is construed fairly broadly and includes, for example, animals that "ground" or orient a person with a psychiatric disorder.⁷ In contrast, the benefit of an emotional support animal comes not from its performance of a task, but from the comfort provided by its mere presence.⁸ Emotional support animals have benefited many people by providing them with comfort, motivating them to be more active, and helping to soothe them in the case of anxiety or bouts of depression. Additionally, emotional support animals can be species other than dogs or miniature horses; cats or birds have also been known effectively to serve this purpose.

For tenants, making this distinction is largely unnecessary when requesting accommodation of an animal in housing. Federal law prohibits the failure to reasonably accommodate disabled persons in residential housing. Federal law provides that "[i]t shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas."⁹ The Code of Federal Regulations interpreting the federal Fair Housing Amendments Act ("FHAA")¹⁰ explained that "[i]t is a violation of §100.204 for the owner or manager of the apartment complex to refuse to permit [a blind] applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling."¹¹ HUD v. Dutra further expanded the service animal to companion animals, holding that the "need for exemption from the no-pet rule" allowed a tenant with disabilities to keep his companion cat in his apartment.¹² In interpreting the California Fair Employment and Housing Act ("FEHA"),¹³ the court in Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n similarly held that "under the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation."¹⁴ However, "the question of whether a companion animal is an appropriate and reasonable accommodation for a disability is a question of fact, not a matter of law."¹⁵ Accordingly, both the FHAA and the FEHA allow for broader accommodations than are mandated under the ADA. Whereas public accommodations must accommodate only animals that are "service animals" for the purposes of the ADA, housing law further includes emotional support animals within the scope of "reasonable accommodations" required of housing providers.

To qualify as an assistance animal warranting accommodation, the presence of the animal must be "necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling," and there must be an identifiable nexus between the disability of the individual requesting accommodation and the assistance the animal provides.¹⁶ Affirmative defenses to this presumption exist when the housing provider can demonstrate that allowing the assistance animal would "pose an undue financial and administrative burden" or would "fundamentally alter the nature of" the housing program or services, or if the housing provider can demonstrate that the specific animal poses a direct threat to the health and safety of others "that cannot be reduced or eliminated by a reasonable accommodation[,] or [...] the specific animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by a reasonable accommodation."¹⁷

III. HOUSING LAW AND ASSISTIVE ANIMALS

A. Assistive Animal Accommodations Under the Federal Fair Housing Amendments Act

The FHAA makes it unlawful to "[refuse] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."¹⁸ The Department of Housing and Urban Development ("HUD") has stated explicitly that the 2010 amendments to the ADA regulations do not affect reasonable accommodation requests under the FHAA or Section 504 of the Rehabilitation Act of 1974.¹⁹ "Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHA[A] or Section 504."²⁰ Cases applying the Fair Housing Act have held that "reasonable accommodations" in housing are not limited to "service animals" as defined by the ADA.²¹ The FHAA provides that "species other than dogs, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under the reasonable accommodation provisions."²²

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Significantly, the Court in Ass'n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor stated that "federal . . . law, while not explicitly embracing 'emotional support...