A tenant moved in a dog who he now claims is an ESA. What steps should I take to determine if this is legitimate?
Depending upon the circumstances it may be advisable to seek legal advice on how to proceed. You may wish to also research HUD guidance FHEO-2020-01, the “Assistance Animal Notice” that clarifies how housing providers can comply with the Fair Housing Act (FHA) when assessing a person’s request to have an animal in housing to provide assistance because of disability. The guidance provides best practices for housing providers regarding analysis and assessment of reasonable accommodations.
Part II of the guidance is the analysis of reasonable accommodation requests under the Fair Housing Act (FHA) for assistance animals. A resident may request a reasonable accommodation, oral or written, either before or after acquiring the assistance animal. An accommodation also may be requested after a housing provider seeks to terminate the resident’s lease or tenancy because of the animal’s presence, although such timing may create an inference against good faith on the part of the person seeking a reasonable accommodation. However, under the FHA, a person with a disability may make a reasonable accommodation request at any time, and the housing provider must consider the reasonable accommodation request even if the resident made the request after bringing the animal into the housing.
Best practices include this analysis: “Has the individual requested a reasonable accommodation — that is, asked to get or keep an animal in connection with a physical or mental impairment or disability?” If there has been no request for reasonable accommodation, the housing provider is not required to grant a reasonable accommodation that has not been requested. If a reasonable accommodation has been requested, the guidance provides best practice questions to assess whether to grant the requested accommodation such as:
- Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability?
- Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?
- Is the animal commonly kept in households?
If these questions can be answered “yes”, the reasonable accommodation should be provided under the FHA.
A housing provider, at its discretion, may make the truth and accuracy of information provided during the process part of the representations made by the tenant under a lease or similar housing agreement to the extent that the lease or agreement requires the truth and accuracy of other material information.
Before denying a reasonable accommodation request due to lack of information confirming an individual’s disability or disability-related need for an animal, the housing provider is encouraged to engage in an inter-active, good-faith dialogue with the requestor. The housing provider may not insist on specific types of evidence if the information which is provided or actually known to the housing provider meets the requirements of this guidance. Disclosure of details about the diagnosis or severity of a disability or medical records or a medical examination cannot be required.