HUD Issues It’s Guidance Memo Regarding How to Evaluate a Tenant/Applicant’s Request for an Assistance Animal But Fails to Provide Much Clarity

By Tristan R. Pettit

On January 28, 2020 HUD published its Memorandum/Notice on how best to assess a tenant/applicant’s request to keep an assistance animal as a reasonable accommodation under the Fair Housing Act.

You can find the entire memorandum here.

HUD had been promising for months to publish a notice/memorandum that would provide landlords with some clarity when it came to health care provider letters purchased online to support a tenant’s request to keep an assistance animal.  I know that I was looking forward to HUD’s memo and some much-needed clarity.

Needless to say, I was disappointed, as were other attorneys and commentators that have blogged about HUD’s latest guidance.  The memorandum really does not provide any clarity whatsoever.  While HUD does acknowledge that letters purchased on the internet are not reliable evidence of a disability or a disability-related need for an ESA — “In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need to an assistance animal” — housing providers have known that for years.

In fact, HUD states that it is providing this memo as guidance to help landlords distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animals and a person without a disability, who simply wants to have a pet or avoid the costs and limitations imposed by landlords’ pet policies, such as pet fees or deposits.  But after I finished reading the 19 pages, I did not come across anything new or helpful that helps me or my clients make that distinction.   

Much of the information in the memorandum has been published before and therefore is not new.  Much of the memo quotes from the Joint Statement from DOJ and HUD on Reasonable Accommodations which was published back in 2004.

I encourage everyone to read the entire memo.  Rather than regurgitate everything in the memo I have chosen to select certain passages or language that I found interesting, informative and/or controversial.

  1. FHA complaints concerning the denial of reasonable accommodations and disability access comprise 60% of all FHA complaints.
  2. Landlords should not reassess request for reasonable accommodations that were granted prior to the issuance of this HUD guidance memo.
  3. HUD’s memo does not expand or alter a landlord’s obligations under the Fair Housing Act (FHA) or HUD’s implementing regulations.
  4. Landlords may not deny a RA request on the grounds that the tenant/applicant has not yet provided the information until they have been provided a “reasonable opportunity to do so.”
  5. Besides information from a health care provider, the following can be used as confirmation of a disability: (1) A determination of disability from a federal, state or local government agency; (2) Receipt of disability benefits or services; (3) Eligibility for housing assistance or a housing voucher received because of disability.
  6. Some types of impairments will, in virtually all cases, be found to result in a determination of a disability such as deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia.
  7. If the tenant is requesting a unique animal that is not commonly kept in households, such as reptiles (not turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals, the tenant has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.
  8. As a best practice, the landlord should make a determination as to whether or not to grant the tenant/applicant’s RA request generally within 10 days of receiving the documentation.
  9. A landlord may not charge a fee for processing a RA request.
  10. Before denying a RA request, the landlord is encouraged to engage in a good-faith dialogue with the tenant/applicant which is referred to as the “interactive process.”
  11. Landlords may not require a health care professional to use a specific form, to provide notarized statements, to make statements under penalty of perjury, or to provide an individual diagnosis or other detailed information about a person’s physical or mental impairment.
  12. When it comes to unique animals (i.e. those not commonly kept in households) it may be helpful for the patient/tenant to ask their health care professions to provide information related to (1) the date of the last consultation with the patient/tenant, (2) any unique circumstances justifying the patient/tenant’s need for the particular animal or type of animal, (3) whether or not the health care professional has reliable information about this specific animal or whether they specifically recommend this type of animal.

There you have it.  Everything is much clearer now isn’t it?!?

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