Condo Media - August 2019 - 33

Emotional Supp rt
HUD MAY TIGHTEN FHA GUIDELINES FOR REVIEWING COMFORT ANIMAL REQUESTS

T

he Department of Housing and Urban Development
(HUD) is reviewing existing Fair Housing guidelines
that, critics complain, make it too easy for nondisabled owners to demand emotional support animals,
and too difficult for condominium boards to challenge
those requests. (See related feature article on page 26.)
The Community Associations Institute (CAI) and other
housing trade groups have been asking HUD to provide
more guidance on the questions housing providers can ask,
the documentation they can require, and the restrictions they
can impose on individuals seeking pet-related accommodations required by the Fair Housing Act (FHA). CAI is asking
the agency specifically to tighten the requirements for individuals or entities who can certify that an individual has an
emotional or psychological disability requiring the assistance
that an emotional support or therapy animal can provide.
Existing guidance allows that documentation to come
from medical professionals, "reliable third parties" and those
"in a position to know" about a disability. But it does not
require that these individuals "have the training, certification
or experience necessary to evaluate and reach a medical determination," CAI notes in a recent comment letter to HUD.
And these loose certifying standards, CAI contends, "have
been exploited" by owners seeking to circumvent association rules prohibiting or limiting pets in their communities.
CAI wants HUD to specify that documentation supporting
an accommodation request can come only from individuals
or entities who have a "medical or professional license and/
or state certification to practice medicine or healing arts"
and have "a bona fide practitioner-patient relationship"
with the individual seeking the accommodation.

TARGETING "MISREPRESENTATION"
CAI also wants HUD to affirm that state laws imposing civil
or criminal penalties for falsely representing an animal as a
service or emotional support animal are consistent with the
Fair Housing Act accommodation requirements. More than
20 states have enacted laws prohibiting the misrepresentation of service animals, but few explicitly include emotional

support or therapy animals in the service animal definition. The CAI Massachusetts Legislative Action Committee
(MALAC) has asked legislators to amend a proposed law to
address that problem. (See Legislative Update on page 34.)
CAI hasn't taken a formal position on these state misrepresentation laws, "and we don't necessarily want to see [criminal penalties] for these abuses," Dawn Bauman, CAI's senior
vice president for government and public affairs, says.
"But we do want to know if HUD thinks the laws are OK."
CAI also wants HUD to provide more clarity about what
qualifications, if any, support animals must meet, and about
the regulations and restrictions, if any, associations can
impose on them.
Industry attorneys typically advise association clients that
"reasonable restrictions" are allowable, but it's not clear, Bauman says, what restrictions HUD would consider reasonable.
"What happens if the animal barks incessantly or is aggressive?" Bauman asks. "Should boards be able to vet animals for friendliness before accepting them?" Also unclear,
Bauman says, is the extent to which boards can impose
restrictions that apply to pets on support animals, which,
she notes, aren't defined a pets. That's a particularly perplexing question, Bauman says. "What about a rule barring
pets from the swimming pool?" she asks. "Why can't an
owner who needs emotional support while swimming insist
on a waiver of that rule?" These are just a few examples of
areas in which condo associations need more clarity than
they have, she explains.
In response to pressure from airlines, the Department of
Justice (DOJ) and the Department of Transportation (DOT)
have clarified rules (under the Americans with Disabilities
Act) governing support animals traveling on planes. "We
think [a similar] dynamic will drive the roadmap for how [accommodation rules] are going to work in the housing area,"
Bauman suggests. The revised DOJ and DOT regulations
give the airlines more discretion to regulate emotional support animals on planes, she notes. "CAI is hoping HUD will
follow suit and give condominium boards more leeway to
manage support animals in their communities."

August 2019 CONDOMEDIA

33
Condo Media - August 2019

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