ADA and Fair Housing – There is a difference!

Assistance Animal (click photo for source)

Recently, a student asked me about an article she saw published in a trade magazine for Community Association Managers that addresses recent changes to the Americans with Disabilities Act (ADA, or ADAA – as amended). In part, the article states:

“The new [ADA] regulations should put an end to the countless service animal questions that have vexed managers, attorneys and judges for decades. The 2010 [ADA] regulations narrow the definition of service animal specifically to dogs…No more debate about monkeys, pot-bellied pigs, cats, or birds.”

The article seems to imply the new ADA regulations apply to resident requests for service animals, which is not the case. The article goes on to say (emphasis added):

“Training has become a key factor. Not only must dogs be trained, but the training must relate directly to the resident’s disability… The [ADA] act makes clear that dogs that simply provide emotional support, comfort or companionship do not qualify as service animals.”

I found these statements to be shockingly misleading. 

They lead a manager and community association board to believe that ADA regulations apply to decisions made by association board members and managers, when considering requests by disabled residents for service animal accommodations.  ADA Regulations Do NOT Trump Fair Housing Requirements!

ADA applies to public accommodations.

Public accommodations include restaurants, office buildings, schools, and the like. ADA does not apply to private residential homes or apartments.   The requirement to accommodate residents with disabilities in private homes and apartments is found under the Federal Fair Housing Act (FFHA), and state and local fair housing laws. NRS 118 is Nevada’s fair housing law, which is substantially equivalent to federal law.

This is an important distinction.

The definitions and application of the provisions under FFHA for service/support animals are much broader than those contained in ADA and ADAA (as amended). HUD has ruled on this issue numerous times:

“Under … the Fair Housing Act …, in order for a requested accommodation to qualify as a reasonable accommodation, the requester must have a disability, and the accommodation must be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the person’s disability. Thus, in the case of assistance/service animals, an individual with a disability must demonstrate a nexus between his or her disability and the function the service animal provides. The Department’s position has been that animals necessary as a reasonable accommodation do not necessarily need to have specialized training. Some animals perform tasks that require training, and others provide assistance that does not require training.”

In addition to the broad provisions of FFHA when addressing the issue of service animals, fair housing case law over the years supports the fact that “service animals” are not just dogs. Service animals do not necessarily need to be trained for a specific purpose.

As a follow-up to this blog post, in a future post I will address some of the cases where housing providers have denied resident requests for assistance animals, and been found to be in violation of the Federal Fair Housing Act.

Do you have an experience with an accommodation request for an assistance animal? Please share your experience with the community by leaving a comment on this post.


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