FHA Confirms that ADA Rules Regarding Service Animals Do Not Apply to FHA/Condos and HOAs

In September of 2010, I wrote an article about the fact that the ADA (Americans with Disabilities Act) had been amended to specify that emotional support animals are NOT service animals for purposes of the ADA, and that compliance with the ADA does not require making accommodations for these types of animal companions.  In the article, I opined that lawyers would borrow these new definitions to argue their FHA (Fair Housing Act) cases, specifically that emotional support animals, pets with no specific training as service animals but that simply provide support to their owners, were not a reasonable accommodation under the FHA, and therefore could be banned from no-pet properties.  Mind you, before I get in trouble here, I wasn’t arguing whether or not that SHOULD be the case–it was simply an academic discussion of the law.

Well that question is now moot, because the department of housing and urban development has issued a memo clarifying that the ADA definitions are not to be construed as affecting the FHA.  The memo recognizes that emotional support animals, as well as animals other than dogs, have been found to fall within the reasonable accommodation standard of the FHA, and that is still the case, even though the DOJ has amended their own definitions otherwise.  Now, this may seem incongruous–you have two different branches of the federal government, one of which that says, for purposes of determining what accommodations must be made in public places, emotional support animals need not be accommodated; and another branch of the government saying, they don’t care, for purposes of determining whether accommodations must be provided to housing residents, the previous rules still apply, and the ADA is irrelevant.  And, truth be told, it IS irrelevant, and they are different agencies.  They have the right to make their own rules, and it’s easily argued that what’s allowed in a public place, like a supermarket, is different than what is allowed in someone’s home.

Part of the FHA’s argument is that, under the ADA, there is no reasonable accommodation standard–animals are either service animals, or they are not, and the ADA definitions draw a bright line.  But under the FHA, pets must first be shown to afford the resident an equal opportunity to enjoy the facilities, and then that there’s a reasonable nexus between the disability and the service provided by the animal.  That is, the agency wouldn’t necessarily say that a cat is a reasonable accommodation for a visually impaired person, but there would be a totally different calculation for someone suffering from depression.  They’re saying that their standard, and tests, are different, and that the ADA definitions should not be construed as having any affect on their own processes.

So, now we officially have two completely different standards.  Your attorney should know what’s going on, but it might be worthwhile to forward the FHA’s memorandum, just in case.

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