Service Animal in Housing

Sol KimU.S. Department of Housing and Urban Development

Sol.t.kim@hud.gov

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.

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

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.

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).

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)

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.

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

Recent Service Animal Issues

• Prohibited Breeds (insurance companies)• Exotic service animals• Emotional support animals• Other tenants suffer from allergy or asthma