Assistance animals are very important to certain disabled people. Under the federal Fair Housing Act and California Fair Housing Regulation section 12005(d), such animals are not pets, and housing providers — including HOAs — must make reasonable accommodations to permit such animals.
However, the lack of guidelines and definitions regarding assistance animals has hampered the ability of deserving disabled people while at the same time permitting broad abuse by those who do not need such assistance.
Until recently, the only guidance available from the U.S. Department of Housing and Urban Development was a 2004 guide issued jointly with the Department of Justice along with a letter HUD published in 2013.
However, on Jan. 28, HUD issued important new guidance regarding the making, or receipt, of assistance animal requests. The 19-page document, called “Assistance Animal Notice FHEO 2020-1” is available at hud.gov and includes helpful guidance on how housing providers should respond to requests for such animals.
The HUD notice is written in plain English, provides an eight-step process for responding to assistance animal requests, and includes many helpful tips on each step in the process.
As with California’s Fair Housing Regulation 12185(c)(2), the HUD notice requires an individual assessment of the individual seeking an assistance animal and rejects websites that generate automatic “certificates” of need for assistance.
The HUD notice differs in some important respects from California’s Fair Housing Regulations. For example, HUD’s notice states “health care professionals” can attest to a non-obvious disability and the resulting need for an assistance animal, while the California regulations at 12178(f) also allow a peer group member, non-medical service provider, or any other reliable third party to document the need for the assistance animal.
However, if the disability is obvious, such as visual impairment, deafness or mobility impairment, the requestor need not submit documentation of the disability, under this notice. California’s Fair Housing regulations at Section 12178(b) are consistent with HUD on this point.
California Fair Housing regulations do not include any species restriction on assistance animals, but the HUD notice creates two animal categories: animals commonly kept in households and unique animals.
The first includes dogs, cats, small birds, rabbits, rodents, fish, turtles “or other small, domesticated animal(s)” while all other animals, including reptiles other than turtles, monkeys and barnyard animals are considered unique animals.
According to the notice, the requestor has a “substantial burden” of demonstrating the need for a unique animal. However, if the requestor meets that burden, the unique animal may be allowed.
Associations, their boards, and their managers (all of which under California regulations are considered the owner for enforcement purposes) should be aware of the existence of Fair Housing laws and regulations at both the federal and state level. HUD issued joint statements with the DOJ in 2004 and 2008, which are also helpful regarding accommodation of disabilities.
Hopefully, compliance with the HUD Notice also will be deemed compliant with California’s Fair Housing regulations, but this is not yet clear. Perhaps the Fair Employment and Housing Council or DFEH will issue guidance soon.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com.
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