HUD has issued a new guidance paper aimed at clarifying the process for handling companion animal requests.
The move comes after HUD agreed to investigate growing concern over fraudulent companion animal requests — those made by pet owners attempting to avoid a landlord’s pet policies. These fake requests are being facilitated by online services that promise to provide renters with prescription letters that take advantage of the broad rules regarding companion animal requests. Some of these websites provide vests and collars for the companion animal designed to give the appearance of a service animal. Others charge a fee to register the animal on a fictitious companion animal database.
HUD officials have expressed concern that these websites are harming persons with disabilities by casting suspicion on legitimate companion animal requests, and by taking money from disabled persons on fixed incomes who erroneously believe that these certifications or accessories are necessary to process a request.
As a result, last November, HUD asked the Federal Trade Commission’s Bureau of Consumer Protection to investigate.
In addition, there has been a lot of news coverage regarding individual choices of companion animals, perhaps most notably those animals allowed on airlines.
The new companion animal guidance focuses primarily on these issues, with the major policy changes allowing more leeway for landlords to reject fraudulent requests, and more clarity on which animals landlords must accept.
It is important to note that the new guidelines do not change the legal requirements for landlords when processing companion animal requests.
Landlords still are required to provide accommodation to tenants with disabilities who have been prescribed an animal as treatment for the disability. Landlords cannot charge any fees for processing the requests, cannot apply pet policies to a tenant with a disability who has been prescribed the animal to treat the disability, cannot reject applicants or evict tenants because of a disability or the request for a companion animal, and cannot alter the usual terms of a tenancy, such as charging a higher deposit or relegating the person to a specific unit or floor.
What the guidance does do is establish “best practices” for landlords, tenants, and health care providers to follow when navigating these rules.
The companion animal rules are rooted in the Fair Housing Act. Virtually all landlords are subject to the Fair Housing Act and its protections for tenants with disabilities. Landlords who fall outside the purview of the federal FHA still may be subject to similar state statutes.
The guidance outlines suggested steps a landlord should take when analyzing a companion animal request:
Has the person requested a companion animal as an accommodation?
HUD clarifies that a person may make a companion animal request during the application process or at any time during the tenancy. The landlord is only required to consider a companion animal if the tenant with a disability makes a companion animal request.
The request does not need to be made in writing. Companion animal requests can be made verbally. Documentation may be required to verify the request.
Does the person have an observable disability or has the person already provided information confirming a disability, such as a housing voucher for a disability, or a disability benefits letter?
This information is considered sufficient to satisfy the requirement that the tenant suffers from a disability and no further documentation on that issue is necessary. However, the individual still must show that the companion animal has been prescribed to treat this disability.
If the disability is not observable, has the person provided information that supports the claim that the person suffers a disability?
The new rule says that a landlord is entitled to “reliable” documentation from a health care provider verifying that the applicant suffers from a disability. HUD’s guidance suggests that prescriptions from online sources unfamiliar with the person making the request are unreliable and encourages tenants to provide a letter from a health care professional who has personal knowledge regarding the tenant’s condition.
To the extent that a landlord requires an applicant to sign a declaration in the rental application or lease agreement that the tenant is providing true and accurate information to the landlord, the information in the companion animal request can be included in such declaration.
An applicant must be given a reasonable amount of time to submit this information. Landlords cannot go back through their files and reassess previous requests that were granted under the old guidance.
Landlords must be careful when denying a request on the basis that the tenant is relying on suspect documentation. The tenant may be the victim of an unscrupulous website but still qualify for a companion animal. HUD suggests referring tenants to its guidance paper so they understand what is required.
There is no formal documentation process and landlords cannot institute such a process, like requiring the health care provider to fill out a specific form. The landlord cannot ask the health care provider to sign under penalty of perjury.
Does the information provided support the claim that the animal provides some form of assistance, such as emotional support, that treats the tenant’s disability?
HUD again clarifies that landlords can require applicants and tenants to declare that they will tell the truth when it comes to providing information to the landlord.
Is the animal one that is commonly kept in households?
This includes dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, or other small, domesticated animals kept in a home for pleasure, not commercial purposes.
Reptiles other than turtles, barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered household animals.
“Unique” animals may be allowed if there is a specific reason that the tenant needs this animal. However, the new guidance shifts the burden to the tenant to prove that such an animal is required.
An example of this exception is a capuchin monkey that can perform tasks a dog cannot, like retrieve items from cupboards, unscrew caps, or switch off lights. Other examples may be chosen because of the tenant’s allergies, or because the animal can be kept outside. HUD encourages health care providers who prescribe unique animals to explain this in the prescription letter.
The request can be denied if the animal poses a direct threat to the health or safety of other individuals or would result in substantial physical damage to property. The landlord is allowed to take deductions from the deposit for damage. However, the landlord cannot charge the person with a companion animal a separate pet deposit or charge a higher deposit.
The person requesting the animal is responsible for its care, or for securing providers who can care for it.
HUD also warns that local zoning ordinances, HOA bylaws or co-op rules which limit pets or companion animal requests are not controlling. Reasonable accommodation of a disability may include suspending those rules.
Requests for companion animals should be processed within 10 days. HUD encourages an “interactive process” of communication when evaluating requests. For instance, the landlord and tenant can discuss alternative accommodation options if the tenant’s request otherwise would be rejected.
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Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.