ADA and Fair Housing Laws

By Judy Cook
Speaker/Trainer & Consultant
Cook & Company, Ltd.

This article discusses the differences between ADA (Americans with Disabilities Act) and Fair Housing laws in terms of how each deals with the subject of "assistance animals."

It seems the recent amendments to ADA that limit such animals to trained dogs, continues to present a good deal of confusion to the housing provider community. I've received numerous emails from property managers, homeowner association managers, landlords and tenants, all under the assumption that the new ADA rules somehow apply to their private housing. Nothing could be further from the truth. In this article, I hope to put the confusion to rest.

ADA applies to public property only

Unless your rental property is open to the public (i.e., you rent your pool or clubhouse to persons who don't live in your community or your property is an office building, store, etc.), ADA does not apply to your property.

Fair Housing law applies to private residential property

Fair Housing law, unlike ADA, applies to residential property, whether it is for sale or rent. And, the law's coverage does not just apply to multifamily properties! It applies to single family homes, condominiums, and even homeless shelters - all residential property is covered. Although there are limited exemptions to Fair Housing law for private owners of a small number of properties, these exemptions are very narrowly construed. If the property owner employs an agent, there is no exemption, no matter how few properties he/she owns. Further, even if the owner does not employ an agent, he/she cannot discriminate in advertising the property for sale or rent, under any circumstances.

These two laws differ in the treatment of service animals.

ADA's rules pertaining to service animals were recently amended to limit the definition of "Service Animals." (Remember, this applies to public property only!) To summarize, ADA now states:

Service Animals. The rule defines "service animal" as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of "service animal."

This limiting rule does not appear in Fair Housing law. In fact, Fair Housing laws (the law itself, HUD's subsequent guidance, and many examples of case law) take a much broader view of service animals. HUD's internal guidance addressing application of both ADA and Fair Housing law states, in part:

...species other than dogs, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under the reasonable accommodation provisions of the Fair Housing Act...

Further, in the same memo comparing ADA to Fair Housing, HUD goes on to say:

The new ADA regulation does not change [Fair Housing law], and specifically notes, "under the Fair Housing Act, an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a 'reasonable accommodation' that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the animal does not pose a direct threat.,,"  In addition, the preamble to the new [ADA] rules states that emotional support animals do not qualify as service animals under the ADA but may "nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the Fair Housing Act.

The bottom line...

Assistance animals, service animals, companion animals... whatever they may be called, and whether they are dogs, cats, snakes, or tortoises, are protected under Fair Housing law, even if they may not be under ADA. Housing and public property are not one in the same, nor are ADA and Fair Housing law.