a pair of terriers looking sad with the caption "we need some emotional support"On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering.

The facts are fairly simple. The complaining party had two dogs, a pug and a boxer. Both provided emotional support for her anxiety disorder. When experiencing an attack she would either lie on the floor and cuddle with the boxer or pace around hugging the pug. The pug was permitted as a pet by condominium association rules, which allowed one dog of less than 30 pounds. The boxer was not, and so the complainant requested that it be allowed as an emotional support animal. The condominium association denied the request, arguing that since she had one emotional support animal as a pet she didn’t need another.

HUD’s view is clearly different since it has made a charge of discrimination.¹ But can HUD’s position be justified by any rational application of the requirements of the Fair Housing Act? The answer is clearly “no.” This was not a case in which the complainant had two disabilities, each requiring a different kind of animal. The complainant suffered from one disability – an anxiety disorder – and both dogs did the same thing; they helped relieve her anxiety.² They apparently did this in slightly different ways – the boxer was for cuddling on the floor and the pug was for cuddling while walking around – but that doesn’t mean two dogs were needed. Why not cuddle the pug the on the floor? The boxer could only be necessary if the complainant could not get the emotional support she needed with just a pug, and the Complaint has nothing to suggest the pug was not cuddleable, perhaps because such a claim would the absurd.

I actually think that HUD’s rationale was slightly different because it makes so much in the Complaint of the fact that the pug was permitted as a pet under the condominium rules. HUD seems to think that because the pug as pet was already allowed there was no accommodation in allowing it. Thus, the only accommodation was for the boxer, and it was really only an accommodation for one dog. If I’m right HUD has truly forgotten the necessity requirement in Section 3604(f)(3)(B). A disabled person only needs an accommodation if they are not getting what their disability requires elsewhere. If an apartment comes with its own accessible parking space the tenant doesn’t need a second accessible space as an accommodation. A blind person with a german shepherd as a guide dog doesn’t need an additional afghan hound guide dog as an accommodation because they want an elegant dog for black tie events. If an emotional support dog is permitted as a pet then no accommodation is needed. The FHA does not create a right to an accommodation; it creates a right to equally use and enjoy a dwelling. An accommodation is a means of insuring that right, but only if it is necessary.

There is no way to know how this case will turn out, but unless there are facts that go far beyond those in the Complaint HUD should not just lose, but be laughed out of court. Nonetheless, the case is an important reminder to landlords to be careful. The path to victory in a case like this is expensive, and HUD never has to pay for the damage it causes when it refuses to follow the law. The dance that HUD calls an interactive process is one that has to be carefully choreographed by the lawyer for a landlord or condominium association so that, at the end of the day, the ridiculousness of the complaining party’s demand for accommodation is obvious enough for even HUD to recognize it. That isn’t necessarily easy, but it is necessary.

¹ I note in passing that HUD apparently believed it was significant that the complainant had obtained some kind of emotional support dog certification although, of course, every such certification is a fraud because there is neither any official certification for service or assistance animals of any kind nor any official set of criteria for such a certification.

² It is important to note that emotional support comes in two varieties, only one of which deserves FHA protection. In this case the dogs alleviated a specific symptom of the complaining party’s anxiety; her inability to function during an anxiety attack. Most emotional support dogs do nothing but generally make their supposedly disabled owner feel better. If the dog doesn’t alleviate a specific symptom there is no disability related need for the animal. It must also be noted that there is no scientific evidence that emotional support animals are ever necessary for a person with a disability to equally use and enjoy a dwelling because disabling mental impairments are better treated by other means. The entire emotional support animal industry is based on anecdotes and wishful thinking.