This week’s news is a year old, but very important for apartment owners and managers confronted by the increasing flood of fake emotional support animal requests.* In March of 2017 the Virginia Fair Housing Board, which carries out Virginia’s mandate for disability rights in housing, issued a formal guidance on what constitutes reliable evidence of a disability and a disability related need for an emotional support animal. You can download the guidance here, but here are the highlights. They are based on the Board’s position that reliable evidence of a disability can only come from someone who has a therapeutic relationship with the tenant. More
FHA Emotional Support Animals
The last ADA / FHA headline that reached my email in 2017 was about a woman in Florida who complained that her “service dog” was not allowed at the pool by her condominium association. It was not an unusual story, but it summed up the way the ADA and FHA, both individually and together have caused confusion for the disabled and businesses that leads to distrust and litigation. To start the New Year I’m presenting a very short primer on the rights these statutes protect and how they relate to each other.
The ADA and FHA protect the rights of the disabled in different places. Title III of the ADA* is designed to make sure that disabled individuals have access to the goods and services sold by every kind of business that is open to the public** except residential sales and rentals. The FHA, on the other hand, is intended to make sure disabled individuals have equal access to housing. When the woman in the story I mentioned above says that the ADA gave her the right to have her dog at the pool she was confusing the ADA and FHA. A condominium swimming pool that is not open to the public is not governed by the ADA because it is not a public accommodation. It is governed by the FHA because it is associated with housing. Both the FHA and ADA have rules about service dogs, but they aren’t the same because they apply in different places.
Speaking of service dogs, this is another area in which confusion reigns. The ADA generally requires businesses to admit “service dogs” and “service miniature horses.” In either case the animal must have special training to help with the disability of the individual. Guide dogs for the blind are an example. Admission is required despite the fact that animals can be disruptive in public places because a disabled person generally cannot function without his or her service dog or miniature horse, and because the training of these animals includes socialization and correct behavior in public. The FHA, on the other hand, creates rights for the disabled not only for service dogs and miniature horses, but also for “comfort” or “therapy” animals of every kind. These need not have special training as long as they are needed for the disabled individual to use and enjoy their housing. For example, a person with anxiety disorder may not be able to sleep without a comfort animal nearby. The FHA is less restrictive because the untrained animal is only needed in the apartment or house and is not exposed to the public. This becomes tricky when the resident claims the animal is needed to allow access to a related facility, like a pool. Can a disabled resident enjoy the pool if his or her therapy animal is left behind in the apartment? That depends on the nature of the disability and the reason the animal is needed in the first place.†
How about service animals in training? Here again the prospects for confusion are considerable. The ADA does not require that service animals in training be allowed in public accommodations precisely because until they are trained they are not useful to or required by the disabled person. On the other hand, if the training involves living with the disabled handler then the FHA requires the animal be permitted even if, at present, it is not really doing anything useful at all.
This housing v. public accommodation difference isn’t always perfectly obvious. Hotels are public accommodations even though people live in them for some period of time. Student housing is always temporary, but some courts say dormitories are subject to the FHA. Housing, temporary or not, is a frequent source of confusion for builders. The ADA requires that in larger hotels or inns 5% of the rooms be completely accessible – meaning that they must have grab bars and even roll in showers for example. The rest of the rooms generally need not have this level of accessibility. The FHA, on the other hand, requires that every apartment be somewhat accessible, but does not require things like grab bars or roll-in showers. I have had any number of apartment developers assure me they complied with the law because five percent of the units were “ADA” units even though the other 95% did not meet the standards in the Fair Housing Act. Apartments must comply with the FHA, hotels must comply with the ADA and some kinds of housing must apply with both. Knowing which law applies makes a difference.
Knowing which law applies also matters when it comes to existing conditions that violate the statutory standards. The ADA requires that any business owner or operator correct conditions that are barriers to access for the disabled as long as it is not unreasonably expensive or difficult. That obligation applies to every public accommodation, no matter how old it may be and to every owner and operator, even if they just took over last week. The FHA, on the other hand, does not require that any owner except the original owner fix accessibility problems, and applies in any case only to buildings constructed after its effective date. We regularly get calls about individuals who want their landlord to fix an accessibility problem that would need correction in a public accommodation, but for which the current owner and management company for an apartment complex have no obligation to fix unless the tenant will pay for it.
Sometimes, of course, both laws apply. The leasing office of an apartment complex offers services to the residents. That makes it an FHA facility. The leasing office is also open to the public. That makes it an ADA public accommodation. The rules for accessibility in such areas are slightly different, with the ADA rules being a little more restrictive. That architect who designed the “ADA” apartments should have put his knowledge of the ADA construction standards to use in the leasing office.
A related problem concerns model homes. The FHA design standards apply only to multi-family buildings‡ but when a single family residence is used as a model home open to the public it can become an ADA public accommodation. Single family homes and duplexes are rarely designed with accessibility in mind, and this can create real problems.
What about the pool? A condominium or apartment pool is not generally open to the public, and the standards for pool accessibility under the FHA are much easier to meet than the ADA standards for a public pool. However, if the apartment or condominium allows the pool to be rented by non-residents it becomes, at least while it is rented, a public accommodation. That means, among other things, it must have a built-in pool lift. This can be a problem in single family developments where a pool facility owned by the homeowners association is rented to non-residents.
Finally, even the language of the ADA and FHA can be confusing. The FHA requires that apartment owners or managers be willing to do two things, make reasonable accommodations in policies and procedures and make reasonable modifications to the physical premises. That’s “accommodation” v. “modification.” The ADA, on the other hand, talks about “modification” of policies and procedures. When someone asks about a “reasonable modification” in the ADA context it means something completely different than in the FHA context.
None of this confusion is really necessary, but unfortunately the FHA is administered by the Department of Housing and Urban Development, Title III of the ADA is administered by the Department of Justice, and many businesses of all kinds rely on architects, contractors or (horror of horrors) the internet to determine just what their obligations might be. With two different administrative agencies, two statutes and thousands of pages of regulatory material this is one of those areas in which, unfortunately, you really need a lawyer familiar with the statutes and regulations.
NOTE: that last sentence means this may be an advertisement or means of self promotion. But you already knew that, didn’t you?
* I’m only going to discuss Title III of the ADA, which is the part that applies to public accommodations – that is, businesses open to the public. Titles I, II and IV cover disability rights in other contexts.
** Whether this includes internet businesses is still an open question, but it certainly includes every business with a physical location open to the public.
† An additional layer of confusion is created by the Air Carrier Access Act, which has its own rules about service and other animals, as well as by Title I of the ADA, which asks different questions about the animal in an employment context.
‡ Basically, four or more units under one roof.
Thanks to Mark du Toit for the cartoon. His website is www.marktoon.co.uk
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, HOA, Policies and Procedures FHA ADA Tags: assistance animals, FHA "dwelling", FHA reasonable accommodation, HUD regulations, Sanzaro
Sanzaro v. Ardiente Homeowners Ass. et al, 2:11-cv-01143-RFB, 2017 WL 5895133 (D. Nevada June 29, 2017) asks whether the clubhouse in a planned development is a “dwelling” for purposes of the Fair Housing Act. The Court doesn’t answer the question, but is one worth thinking about when trying to decide how the idea of disability discrimination applies to common areas in any kind of housing development or apartment complex.
The Fair Housing Act itself has a somewhat confusing definition of dwelling. A “dwelling” is:
any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies, ADA Web Access, FHA Emotional Support Animals
Black Friday is approaching. In honor of the annual sales we’ve collected a bevy of cases containing helpful lessons for any business subject to the ADA or Fair Housing Act.
Siler v. Abbott House, Inc., 2017 WL 5494989 (S.D. Fla. Nov. 16, 2017) teaches a simple lesson for HOA’s: call your lawyer before you do anything concerning a disabled tenant or resident. In this case the prospective tenant was, it seems clear, treated very badly by a condominium home owners association. The conduct went from merely improper (questions about her obvious disability and need for personal assistants) to just spiteful (moving an access button to make sure she couldn’t reach it). Despite a later letter from the HOA’s lawyer apologizing and trying smooth things over the Court refused to dismiss the tenant’s claims for damages and attorneys’ fees. This isn’t a final victory for the plaintiff, but it guarantees the HOA will spend tens of thousands of dollars in legal fees if it doesn’t settle. Every HOA needs a clear set of policies regarded disabled tenants, and if those policies don’t exist, the Board should not act without first calling a lawyer. More
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA definition of handicap, FHA Emotional Support Animals, Residential Development Tags: Emotional Support Animal, Fair Housing Act, FHA, reasonable accommodation
When used in the context of a claim under the Fair Housing Act or Americans with Disabilities Act the words “disability” and “handicap” have specific legal meanings. Our last blog looked at a case, Houston v. DTN Operating,* discussing what a plaintiff must plead concerning her disability in a reasonable accommodation case. Today we’re looking another recent case, Haws v. Norman, 2017 WL 4221064 (D. Utah Sept. 20, 2017) that considers the next step – a motion for summary judgment by the plaintiff. There is plenty of interest in the opinion on related subjects**, but the Court’s ruling on proof of disability and necessity of accommodation is especially important to landlords who suspect a disability claim is not justified. More