Service Animal in Housing

1. Service Animal in Housing Sol Kim U.S. Department of Housing and Urban Development Sol.t.kim@hud.gov

2. Fair Housing Act, 42 U.S.C. 3601 • The Fair Housing Act (“Act”) seeks to prohibit housing discrimination throughout the United States based on race, color, religion, sex, familial status or national origin • Effective March 12, 1989, the Act was amended to include “handicap” as a protected class via Fair Housing Amendment Act of 1988. • Covers all housing except religious housing, private clubs, or narrow class of single family home owners.

3. Definition of Disability Under the Act • Virtually identical to ADA and Rehabilitation Act definitions • Substantially limits major life activities; • Record of having such an impairment; or • Being regarded as having such an impairment • Does not include current illegal use or addition to controlled substance or being a transvestite (statutory exception) • Covers mental and emotional disabilities as well as physical disabilities • Covers ailments associated with aged population

4. Definition of Disability Under the Act II • ADA has been amended to broaden and clarify but not FHA. • Transitory disabilities • Mitigating factors (Catch 22) • Major life activities • Nonetheless, the policy is to argue ADA amendment was a clarification of intent for the Act. • How important is this? In 2004, employees lost 97% of the employment discrimination cases that went to court.

5. Disability Discrimination Under the Act • Covers associated persons • Refusal to rent, sell, or make housing available because of disability • Applying different terms, conditions or privileges in sale or rental or in privileges of services or facilities • Discriminatory statement • Refusal to permit reasonable modification or accommodation • Failure to design and construct accessible multifamily dwellings • Coercing, intimidating, threatening, or interfering with any person in the exercise or enjoyment of fair housing rights (or aiding or encouraging a person in the exercise or enjoyment).

6. Service Animal in Fair Housing Context • Problems typically arise in connection with 804(f)(1) (making housing unavailable) and with 804(f)(3)(B) (reasonable accommodation) • Landlords insisting on “no pet” rule despite being told the animal serves needs of disabled • Landlords refusing to modify “no pet” the rule upon request • Asks for additional fees or deposits • Usually HUD has not considered “no dog” or “no animal” statement to violate 804(c) (discriminatory statement)

7. Permissible Verification • Illegal to inquire into the nature and severity of the disability • May verify the nexus between disability and the service animal, and reject the animal if the nexus is not established. • HUD has permitted landlords to ask for a doctor’s note showing the nexus.

8. Grounds for Rejecting Service Animals • Disability-neutral reasons • Threat to the health and safety. • Cannot be based on speculation or bias but must be based on objectively reasonable grounds. • Damage to property • Undue economic burden • Fundamental alteration

9. Recent Service Animal Issues • Prohibited Breeds (insurance companies) • Exotic service animals • Emotional support animals • Other tenants suffer from allergy or asthma