The federal Fair Housing Act (FHA) protects the right of people with physical or mental disabilities to keep assistance animals, service animals and emotional support animals (ESA), whatever the label, even when the applicable policy or rules explicitly prohibit pets. The law generally requires a condominium association, rental property owner or property manager to make an exception to any no-pet policy as a reasonable accommodation as long as the accommodation does not constitute an undue financial or administrative burden for the housing complex or fundamentally alter the nature of the housing. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy
a dwelling unit or common space.
In the face of legitimate disabilities, most property managers will accommodate requests for assistance animals. But when property managers begin to suspect a person is trying to take advantage of them and represent a pet as an assistance animal, an atmosphere of suspicion, distrust and resentment arises. This attempt is often seemingly facilitated by online companies offering to provide the documentation needed for individuals to portray their pet as an assistance animal and live with their animal in spite of and regardless of any pet prohibitions or restrictions.
Disability
Fair housing laws protect persons with disabilities. A person is considered to have a disability if the person:
- Has a physical or mental disability including, without limitation, hearing, mobility, speech and visual impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, mental or emotional illness, HIV, mental retardation, cancer or heart disease, that substantially limits one or more major life activities, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning and speaking.
- Has a record of having such a disability.
- Is regarded as having such a disability.
Reasonable accommodation
It is considered discrimination based on disability when a housing provider such as a landlord, property manager or a condominium association refuses to make reasonable accommodations. A requested reasonable accommodation is necessary when there is an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. Some examples of reasonable accommodations include:
- Assigned parking space for a person with a mobility impairment.
- Permitting an assistance animal in a “no pets” building
for a person who is deaf so the dog can alert the person
of knocks at the door, the sounding of the smoke detector, the telephone ringing and cars coming into the driveway.
- Waiving any pet deposit for a combat veteran living with a mental disability who has an ESA and is renting a house.
A prospective tenant or condominium buyer should request a reasonable accommodation, preferably in writing, from the housing provider. The request should state the disability if that is not readily apparent and indicate the relationship between the person’s ability to function and the assistance of the animal, again if not readily apparent. An individual with a disability should demonstrate a nexus between his or her disability and the assistance his or her dog provides, for example pulling a wheelchair or fetching items. In addition, the prospective tenant or unit buyer should include a letter or prescription from an appropriate health professional, such as a therapist or physician, verifying the need for the assistance animal. The person with disabilities need not disclose the details of the disability nor provide a detailed medical history.
If the housing provider is provided with a prescription letter for an ESA, the housing provider may ask for follow-up information if the letter and/or situation appear insufficient
or questionable. But the housing provider must be careful because there is a balance at play, and the provider cannot push too far into a person’s private medical history.
Abuse of the law
Individuals can go online and pay a fee to obtain an ESA letter. This is based on the person’s application information or an evaluation via telephone or video chat with a mental health professional of some variety who will then provide a prescription letter indicating the person needs the animal because of an emotional disability.
There has been a proliferation of web-generated documents purporting to provide medical documentation for the need for the accommodation. There are a number of legitimate reasons for someone to benefit from an assistance animal. But there have also been too many cases of individuals simply wanting to get out of paying a pay deposit or wanting to live in properties that do not allow pets. These pet owners can go online and for a fee be provided with documentation that seemingly meets the standards for a reasonable accommodation under the FHA. Housing providers have become increasingly frustrated with the dubious documentation generated online, generally because they have serious misgivings whether such ESA letters are credible.
Wisconsin open housing law
Wisconsin law was recently modified in part in an attempt to address the concerns with the dubious online companies. If an individual has a disability and a disability-related need for an ESA, it is discrimination under the new Wis. Stat. § 106.50(2r)(bg) for a person to refuse to rent or sell housing to the individual, cause the eviction of the individual from housing, require extra compensation from the individual as a condition
of continued residence in housing, or engage in the harassment of the individual because he or she keeps such an animal.
If, for instance, a prospective tenant is requesting an ESA, unless the disability or disability-related need is apparent or known, the tenant may be asked for 1) reliable documentation of the tenant’s disability, and 2) reliable documentation of the disability-related need for the ESA from a licensed health care professional. Wisconsin law defines a licensed health care professional as someone licensed or certified in the state of Wisconsin and acting within the scope of his or her license or certification.
There are parts of the Wisconsin law that appear to conflict with federal Fair Housing Law, which preempts or controls with regard to fair housing issues, so the enforceability of the new Wisconsin provisions is unclear.
Attempts at enforcement
Along with the needed reasonable accommodation documentation, the online sites often provide a primer regarding reasonable accommodations and assistance animals under the FHA along with pointers for responding if the person is denied the requested reasonable accommodation. In other words, the online clientele is well versed in the fair housing law protections for persons with disabilities and their assistance animals. If the housing provider receives the online-generated ESA documentation, calls “fraud” and denies the housing, the person might file a fair housing discrimination complaint with the Department of Housing and Urban Affairs (HUD) or a lawsuit. What apparently often happens with HUD is the investigator will find the online service had a therapist or other health care provider who conducted a video chat or a phone call with the person. The health care provider claims to have taken a patient history during this interaction and to have received enough information to diagnose the disability and write the prescription for the animal. HUD’s view is that HUD and its investigators are not health care professionals and thus not qualified to find against a purported health care provider and conclude such a video chat or phone call is not sufficient. Therefore, HUD ends up accepting the online health care provider’s testimony as sufficient to establish probable cause that the housing provider discriminated against the prospective tenant or unit owner. Rather than go to hearing and bring in medical professionals to try to dispute the online therapist, most housing providers then decide to settle rather than engage in costly litigation.
Investigation into assistance animal documentation websites
On November 8, HUD sent a letter to the Federal Trade Commission (FTC), asking the commission to investigate websites selling assistance animal documentation. The National Association of REALTORS® (NAR) had long been urging HUD to develop additional guidance for housing providers when individuals request an accommodation for an assistance
animal and use web-generated documentation to establish the presence of a disability and the need for the assistance animal.
Multiple online entities offer certificates for people to secure such accommodations, but there is virtually no regulation of these providers and some even offer certifications without examining the individuals requesting them.
In its letter, HUD states web-based forms are only reliable if “the provider has personal knowledge of the individual’s disability-related need for the animal.” NAR concurs. NAR President John Smaby remarked, “REALTORS® believe that a healthcare professional should have a patient or therapeutic relationship with an individual before certifying his or her disability.”
The HUD letter asks the FTC to investigate the websites providing assistance animal documentation for compliance with federal laws that protect consumers from unfair and deceptive acts or practices. HUD identified at least one website that contains the seal of HUD without authorization.
Resources
FTC Consumer Response Center
Persons concerned about these websites may contact the Federal Trade Commission (FTC) by calling the FTC’s Consumer Response Center at 1-877-FTC-HELP (1-877-382-4357) or by filing a complaint online at
www.ftccomplaintassistant.gov/#crnt&panel1-1.
Resources from the National Association of REALTORS®
Resources from the WRA
Additional resources
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.
