[nagdu] Fair Housing Amendments Act (1988) What it saysDelta Society - Service Animal FAQs: Housing

[Steven Johnson]

Just for clarification on the past conversation regarding service animal,
emotional support, and other animal access/allowance in housing, please read
this from the Delta Society:


Service Animals & Housing
Content contributed by: Tammi Bornstein, Attorney, and Susan L. Duncan, RN.

Landlords, tenants and owners in multifamily housing, housing management
associations and realtors often have questions about service animals in
housing that traditionally has had no-pet policies. In many areas, despite
federal and some state laws that protect people with disabilities to have
service animals in housing, confusion about rights and obligations persist.
This can lead to discrimination. The federal Fair Housing Amendments Act is
the law that most often helps to provide the guidance necessary to answer
the questions that arise about service animals in housing. This article is
not legal advice, but is informal technical assistance to help answer some
of the most frequently asked housing questions. Advice about individual
circumstances and about the legal interpretation of the Fair Housing Act can
be obtained from the local Housing and Urban Development (HUD) office.

History of the Fair Housing Amendments Act
The Fair Housing Act is a civil rights law that protects the rights of
individuals with disabilities in housing. Originally, the Civil Rights Act
of 1968 prohibited discrimination on the basis of race, color, religion,
sex, or national origin in the sale, rental and financing of dwellings.
Subsequently, the Fair Housing Amendments Act (commonly referred to as the
Fair Housing Act) of 1989 was enacted to further address inequities in
housing. It broadened the definition of "protected class" to include, among
others, individuals with disabilities. It prohibits discrimination because
of disability in the sale, rental or advertising of dwellings. The law
requires public and private housing providers to modify policies and
practices that deprive individuals with disabilities of their rights to
enjoy and use their dwellings.

How the Fair Housing Act Protects Individuals with Disabilities with Regard
to Service Animals
Service animals are a healthcare option that many individuals choose to help
them overcome the limitations imposed by disabilities. The Fair Housing Act
protects individuals who have disabilities as defined by the Act. In order
to be protected by the Fair Housing Act with regard to service animals, 3
tests must be met:

1. The person must have a disability (see Disability Defined, following). 
2. The animal must serve a function directly related to the person's
disability. 
3. The request to have the service animal must be reasonable.

The provisions that protect the rights of individuals with disabilities to
be accompanied by service animals are just one way that the Fair Housing Act
protects people with disabilities. With regard to service animals, the Fair
Housing Act does not protect individuals who do not have disabilities, or
situations in which individuals train animals for use by people other than
themselves.

Disability Defined
The Fair Housing Act defines a person with a disability as an individual who
has a physical or mental impairment that substantially limits one or more
major life activities, or has a record of an impairment, or is regarded as
having an impairment (regardless of whether that perception is accurate). It
is not necessary that the disability be an obvious one. 
Disability is defined broadly and has been found to include such conditions
as alcoholism and drug addiction but excludes individuals with current,
illegal use of or addiction to a controlled substance. Other specific
exemptions, such as transvestitism, are listed in the Act.

Types of Housing Covered and Exempted
The Fair Housing Act covers most housing types, with limited exceptions. The
Act generally does not cover single family residences sold or rented by a
private, individual owner, provided that:

.the individual owner does not own any interest in, or have owned by someone
else on his/her behalf, more than 3 such single-family houses at any one
time.
.the private individual owner has not sold more than one nonowner occupied
single-family house within a 24-month period.
.with regards to the sale or rental of a dwelling, it is sold or rented
without advertising or the assistance of a person or entity that is in the
business of selling or renting dwellings.
.the owner occupies and maintains one of no more than 4 rooms or units in
dwellings containing living quarters occupied or intended for occupation by
no more than 4 families living independently of each other.
.the housing owned by religious organizations and private clubs for other
than commercial purposes limit occupancy to their members.
Dwelling Defined
Dwelling is defined in the Fair Housing Act as any building, structure or
part thereof which is intended for occupancy as a residence by one or more
families. The terms "dwelling" and "dwelling units" have been broadly
interpreted. Types of facilities recognized as dwellings include: 
         . nursing homes. 
         . group homes for recovering addicts and alcoholics. 
         . seasonal facilities (i.e. for migrant workers). 
         . residential facilities. 
         . mobile homes. 
         . trailer parks.

Condominiums and cooperatives are also considered dwellings and are subject
to the prohibitions against discrimination except when a particular unit is
sold by an individual owner who is accorded exempt status. In such cases the
Fair Housing Act may not apply to the individual unit owner, but would still
apply to the condominium or cooperative association. So, with regard to
access by individuals with service animals, the result is the same:
restrictive policies must be modified to allow a person with a disability to
be accompanied by his or her service animal.

Lodging for transient guests such as hotels and motels are not dwellings
under the Fair Housing Act. However, hotels, motels, inns, shelters for
people who are homeless and similar places of lodging are considered to be
public accommodations under the Americans with Disability Act (ADA) and
likewise may not discriminate against people on the basis of disability.

Required Conduct
The Fair Housing Act makes it unlawful to discriminate in the sale or
rental, or to otherwise make unavailable or deny housing, to individuals
because of their disabilities. The law covers not only the named
buyer/renter but also all individuals who reside in the dwelling or are
associated with the buyer or renter.

For the purpose of sale or rental, the Fair Housing Act prohibits housing
providers (landlords, property managers, owners, etc.) from asking whether
an individual has a disability or about the nature or severity of that
disability. In addition, housing providers may not request or require
medical records or documentation of disability. However, limited exception
is made and questions specific to disability may be asked in certain
circumstances, such as:

.to determine whether an individual qualifies for residency in dwellings
that are designated for, and made available only to, persons with
disabilities.
.when particular units are set aside for priority occupancy by individuals
with disabilities.
.when a person with a disability requests a reasonable accommodation, such
as having a service animal in otherwise "no-pets" housing (see definition,
following).
It is legal for housing providers to inquire about any individual's ability
to meet the requirements of ownership or tenancy when the same inquiries are
made of all applicants, whether or not they have disabilities. A provider
may consider an applicant's ability to pay, past rental history, and
violations of rules and laws. Further, an application for tenancy or
ownership may be rejected when it can be demonstrated by concrete and
credible evidence that an individual would be a direct threat to the safety,
or cause substantial damage to the property, of others. An individual with a
disability will be held to the same standards of behavior and obligations as
any other individual.

Reasonable Accommodation
Reasonable accommodations are modifications that are practical and feasible.
The Fair Housing Act requires that owners and landlords provide reasonable
accommodation (that is, a change in rules and policies) when necessary to
permit an individual with a disability equal opportunity to use and enjoy a
dwelling. It is the responsibility of the person with the disability to
request any necessary reasonable accommodations necessary for tenancy.

An example of reasonable accommodation is modifying no-pet policies and
practices to support the right of a person with a disability to have a
service animal in a publicly or privately owned dwelling. Refusal to permit
an exception to a no-pets rule may constitute a discriminatory practice when
an individual with a disability is unable to use and enjoy a dwelling,
including entertaining guests with disabilities who require the use of
service animals.

Although inquiries into the existence, nature and extent of disabilities are
prohibited by the Fair Housing Act when application is made for housing, an
individual with a disability who requests a reasonable accommodation may be
asked to provide some reliable professional documentation (but medical
records may not be required) confirming that he or she has a disability and
the accommodation is necessary for the person to reside in the housing. To
support a discrimination claim, the person with the disability might be
required to further demonstrate that the requested reasonable accommodation
is necessary for his or her equal use and enjoyment of their dwelling. In
investigating complaints brought under the Act, HUD considers whether there
is evidence that supports a finding of disability, whether the service
animal performs a function directly related to the individual's disability,
and whether the requested accommodation is reasonable.

Service Animal Categorized
The Fair Housing Act does not define "service animal" per se, and does not
make a distinction among certified service animals, non-certified animals,
animals that provide psychological support, and service animals in training
that live with the people with disabilities for whom they will work. The Act
does not have restrictions about who may train the animal. However, the Act
recognizes that service animals are necessary for the individuals with
disabilities who have them, and as such does not categorize service animals
as "pets." Service animals, then, cannot be subjected to "pet rules" that
may be applied by housing providers to companion (non service) animals.
Housing providers cannot, for example, impose upon service animals the size
or weight restrictions of a pet rule, exclusions from areas where people are
generally welcome, or access restrictions to only a particular door or
elevator. Further, special tags, equipment, "certification" or special
identification of service animals cannot be required. Judith Keeler,
Director, U.S. Dept. of HUD, Northwest Alaska Area Fair, Housing Enforcement
Center, states that it is HUD's position that no deposit may be charged for
the service animal.

The Act does not specifically limit the number of service animals an
individual with a disability may have. Requests for multiple service animals
may be reviewed on a case-by-case basis. It is possible that housing
providers may impose limitations if it can be demonstrated that an
individual's request for reasonable accommodation exceeds what is necessary
for that person to have full use and enjoyment of the premises.

Individuals with disabilities may request other reasonable accommodations
regarding their service animals. For example, a person with a mobility
impairment may find it difficult to walk a service dog. He and the landlord
might work together to identify a mutually agreeable, and accessible, area
of the property on which the dog can relieve itself.

Rights of Housing Providers
Individuals with disabilities are solely responsible for the conduct of
their service animals, and housing providers may have recourse available if
the tenant fails to satisfy this obligation. For example, a housing provider
may require payment for damages (such as chewed carpeting), or insist that a
service animal be prevented from repeated barking that disturbs neighbors.
However, a housing provider may first be obligated to attempt resolution of
the problem before eviction proceedings are initiated. Complaints about a
service animal must be substantiated and not based on speculation.

Service animals that are a direct threat to others (biting, etc.) or
otherwise violate animal control laws can be reported to the agency that
enforces animal control laws. Often the agency is the animal control
department, or the local police. Some local and state laws exempt service
animals from some animal control laws (see Other Federal Laws, following).

Responding to Discriminatory Conduct
If an individual feels he or she is being discriminated against because of a
disability, and efforts to resolve the matter through discussion with
housing management fail, a complaint may be filed with the Secretary of
Housing and Urban Development (HUD) within one year of the alleged
discriminatory conduct. HUD provides complaint forms and instructions for
filing a complaint.

In addition, if the resident's state or locality has laws pertaining to
nondiscrimination in housing, a complaint may be sent to the agency that
administers those laws (usually the state Human Rights Commission or office
of the state attorney general). The deadlines for filing may be different
than that of Fair Housing Act. Complaints are investigated by the
enforcement agencies that administer the law(s) in question. If the
complaints are found to have merit (a basis for complaint), the agencies
will attempt resolution through conciliation (informal resolution, not a law
suit). If these attempts fail, the case will proceed to an administrative
hearing, or if requested by either party, will proceed to litigation (law
suit) in federal district court. Private lawsuits may also be filed in
federal court, at the individual's own expense, within 2 years following the
discriminatory act. 
In addition, there may be certain state and local laws that protect the
rights of people with disabilities in housing. However, federal law will
supercede any state or local law that is more restrictive and provides less
protection for the individual with the disability.

Other Federal Laws
In addition to the Fair Housing Act, there are other federal laws which
forbid discrimination based on disability.

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on
the basis of disability in all programs and activities that are either
conducted by the federal government or receive federal financial assistance.
The concept of reasonable accommodation in this Act served as the model for
the Fair Housing Act. 

HUD's "Pets in Elderly Housing" regulation, often referred to as the "Pet
Rule," was enacted in 1986, revised in 1996 and again in 1999. It applies to
federally assisted rental housing designated exclusively for residency by
those 62 years of age or older or people with disabilities. It not only
protects the rights of individuals with disabilities to have service
animals, but also allows all residents of most federally funded housing to
have pets (companion or nonservice animals). Landlords may have "reasonable"
pet policies, which might include size restrictions, for these pets. One of
the types of housing that this rule does not cover is Section 8 housing,
which is covered by the Fair Housing Act. Section 8 housing has no
requirements for landlords to permit pets (nonservice animals). 

The Americans with Disability Act (ADA) prohibits state and local
governments from discriminating against individuals with disabilities in
places of public accommodation. The ADA covers certain types of
nontraditional housing, such as temporary shelters. 


Other Resources and Educational Sources
Too often, housing discrimination results from a lack of understanding about
the needs of individuals with disabilities and the requirements imposed by
law. Education and communication are key to reducing this discriminatory
conduct. Additional information about service animals in housing can be
obtained from: 
         . the Department of Housing and Urban Development (HUD). 
         . the U.S. Department of Justice. 
         . your state Attorney General. 
         . an attorney of choice. 
          
Note: Service animal costs might be applicable as medical costs toward
"spend downs" used to calculate rent in subsidized housing. For more
information, refer to individual subsidization program guidelines or consult
the local HUD office.

Read another document in this section: 
         . The Legal Ins and Outs of Pet Ownership and Housing
         . Pets in Housing Resources
  
 http://www.deltasociety.org/Page.aspx?pid=489