If you have an emotional support animal, note a change in federal housing rules
Community association disputes over requests for reasonable accommodations for emotional support animals as provided under the federal Fair Housing Act have grown to become fairly common over the last 10 years. Some associations would deny the requests over invalid online registrations, and some residents would accuse their community of overzealous rule enforcement.
During that time, the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity has considered untrained emotional support animals as being essentially the same as trained service animals. Regulatory guidance from the federal agency from 2013 and 2020 supported this interpretation and established some definitions for the documentation housing providers could request.
These policies spurred the development of a cottage industry for the conversion of pets into emotional support animals. In some cases, all that this took was an official-looking letter and documentation, which became readily available via online sources.
On May 22, HUD issued an internal major enforcement memorandum that completely changes how the agency will handle reasonable accommodation complaints involving emoitional support animals.
The change aligns the FHA with the Americans with Disabilities Act by adopting its standard for assistance animals, which the ADA holds are only those that are “individually trained to do work or perform tasks for the benefit of an individual with a disability.” It further clarifies that providing mere “emotional support, well-being, comfort, or companionship” does not constitute work or tasks.
The HUD Assistant Secretary for Fair Housing and Equal Opportunity explains in the internal memo that the prior guidance failed to provide meaningful clarity, and it remained “an immense challenge to determine whether an animal-related reasonable accommodation should be granted or denied.” The document also cites a federal court ruling that rejected the agency’s 2020 guidance as being “unpersuasive” on certain issues in a case involving an emotional support animal reasonable accommodation claim.
The memo permanently rescinds the prior HUD guidance notices. It explains that going forward, HUD will apply and use the ADA definition for service animal to assess all FHA animal accommodation complaints, including those involving emotional support animals.
The federal agency will only consider animals that have been specifically trained to perform work or tasks, which must be directly related to the disability. Examples include assisting the blind, providing alerts of sounds to the deaf, assisting those afflicted by seizures, retrieving items, providing physical support, and helping those with psychiatric or neurological disabilities.
The memo, which does not constitute new federal law but rather reflects HUD’s interpretation of existing law, specifies: “The provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”
Additionally, the agency “no longer expects housing providers to categorically extend reasonable accommodations for trained assistance animals to untrained ESAs.”
For association boards and property managers, the change provides relief from the risk of HUD enforcement for ESA request denials for untrained animals. A significant percentage of HUD’s previous fair housing complaints involved untrained emotional support animals, and the agency’s focus will now be on cases involving denials for trained assistance animals.
The memo also signals that HUD intends to engage in future notice and comment rulemaking regarding animal-related reasonable accommodations. The agency wishes to harmonize its regulations with the ADA, and it plans to seek input from public and private housing providers for consideration.
In light of the changes, community associations that do not have existing assistance animal policies or that are considering revisions to their current rules should begin by reviewing their policies concerning animals with the guidance of qualified legal counsel.
Association board members and managers should also remain cognizant of the fact that the change does not mean they can now deny all accommodation requests involving ESAs. The FHA still provides strong protections for individuals with disabilities.
Associations should also recognize that state law remains independently enforceable. In Florida, housing discrimination complaints, including those involving ESAs, may still be pursued through private litigation or by the filing of a complaint with the Florida Commission on Human Relations. However, it remains unclear how courts will adjudicate such FHA claims and how local fair housing agencies will adapt their internal procedures when responding to discrimination complaints.
The review process for accommodation requests for animals should continue to be thorough and reasonable. Case-by-case evaluations with extensive documentation should remain the standard operating procedure, only now they will come with the knowledge that the ADA’s training-based standard will hold sway in determining any potential federal enforcement.
Together with their legal counsel, board members and property managers should evaluate how the recent changes in federal enforcement guidance may impact their reviews of requests for reasonable accommodations involving ESAs. The changes are already in effect, and they should be known and understood by all those making future accommodation decisions.
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Shari Wald Garrett is a shareholder with the South Florida law firm of Siegfried Rivera who focuses on community association law. She is a regular contributor to the firm’s Newsroom blog at www.SiegfriedRivera.com/blog and is based at its Coral Gables office. The firm also maintains offices in Broward and Palm Beach counties, and its 49 attorneys focus on community association, real estate, construction and insurance law. www.SiegfriedRivera.com, SGarrett@SiegfriedRivera.com, 305-442-3334.
