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7 Things You Need to Know about Emotional Support Animals in 2023

What you can’t do:

  1. Breed, size, and weight limitations may not be applied to an assistance animal.
  2. Pet conditions and restrictions such as pet deposits cannot be applied to assistance animals.
  3. You may not ask an applicant or tenant to:
    • Provide access to medical records or medical providers or
    • Provide detailed or extensive information or documentation of a person’s physical or mental impairments.
  4. A request for a reasonable accommodation may not be unreasonably denied, or conditioned on payment of a fee or deposit
  5. The response to a reasonable accommodation may not be unreasonably delayed.
  6. You are not entitled to know an individual’s diagnosis or require disclosure of:
    • Medical records,
    • A diagnosis or
    • The severity of a disability.
  7. You may not insist on specific types of evidence if the information which is provided or actually known to the association meets the requirements of the FHA (Fair Housing Act).

What you can do: – the 10 things identified below.

United States v. The Dorchester Owners Association, 2023 WL 413580, (E.D. Pennsylvania 1/25/2023)

Issue Whether the Association adopted regulations and/or engaged in a “pattern or practice” to prevent or delay approval for residents who qualify for an emotional support animal (“ESA”) to live with them in their apartment.

Facts The Department of Justice (“DOJ”) sued the association alleging that its policies and practices relative to emotional support animals (“ESAs”) violated federal law. The jury found some claims in favor of the DOJ and some claims in favor of the association. The most important part of the case is that it laid out the rules applicable to associations when considering ESA requests. Those are the following:

The Law (As laid out by the court in the case)

The Fair Housing Act (“FHA”) makes it unlawful:

“to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is sold, renter, or made available; or (C) any person associated with that buyer or renter.”

42 U.S.C. § 3604(f)(1). Discrimination includes:

“a refusal 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[.]”

42 U.S.C. § 3604(f)(3)(B). “Handicap” means

“(1) a physical or mental impairment which substantially limits one or more of such persons major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment[.]”

42 U.S.C. § 3602(h).

The United States may bring an action against “any person or group of persons” that has “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights” or denied “any group of persons” “any of the rights granted by” the Fair Housing Act. 42 U.S.C. § 3614(a). Neither the Supreme Court nor the Third Circuit has addressed the meaning of the term “pattern or practice” as found in the FHA. Nonetheless, it is clear that Congress passed the FHA in order to deter discrimination against protected classes, including people with disabilities. 431 East Palisade Avenue Real Estate, LLC v. City of Englewood, 977 F.3d 277, 283 (3d Cir. 2020). The FHA was “intended by Congress to have ‘broad remedial intent.’ ” Alexander v. Riga, 208 F.3d 419, 425 (3d Cir. 2005) citing Havens Realty v. Coleman, 455 U.S. 363, 380 (1982).

In 2013, the Department of Housing and Development (“HUD”) issued guidance on assistance animals. The 2013 Guidance states that the FHA does not require that an assistance animal be individually trained or certified. Housing providers were required to consider two points: (1) whether the person seeking to use and live with the animal had a disability; and (2) whether the person making the request had a disability-related need for an assistance animal. If a person met both points, the association is required to allow the animal “in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the [association’s] services.”

What an association can do is the following:

  1. Deny the request if:
    • the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
    • the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
  2. Ask the person seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
  3. The type of ESA recommendations would satisfy the requirements for an application and address the rising issue of “internet form letters” available for sale. HUD emphasized: Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities. There are two types of assistance animals: (1) service animals, and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as a “support animal”). An animal that does not qualify as a service animal or other type of assistance animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies.
  4. Ask the following questions based on the 2020 HUD Guidance:
    • Whether the individual “requested a reasonable accommodation – that is, asked to get or keep an animal in connection with a physical or mental impairment or disability
    • Whether the person has an observable disability or whether the association “already ha[s] information giving them reason to believe that the person has a disability”
    • Whether “the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability”
    • Whether the person requesting the accommodation showed that “the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability;” and
    • Whether the animal is “commonly kept in households.”
  5. Because some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee, under the FHA an association may “request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that is not obvious or otherwise known. HUD has stated that “documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal,” although the association must recognize that “many legitimate, licensed health care professionals deliver services remotely, including over the internet. One reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.”

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