Who Let the Dogs Out?
When I taught my first ever Fair Housing Act course over a decade ago, I felt like I was prepared for any question that came my way. I wasn’t. The first question, not even 30 minutes into a three-hour class, was from a frustrated landlord dealing with what he referred to as an “emotional support pig.” A little unneeded background about me: my high school sweetheart had a pet pig named Wilbur that I was hopelessly devoted to. While Wilbur had his run of a large house on several acres and even floated in the pool on his own pool floatie, the “emotional support pig” the landlord in my class was dealing with was living in a 500 square foot apartment with no yard and annoyed neighbors. Since that day, I have spent a lot of time researching and then explaining the law surrounding animals in real estate.
On January 28, 2020, with the goal of simplifying the process for housing providers and individuals with disabilities to navigate this area, the Department of Housing and Urban Development (HUD) released FHEO-2020-01. Previous guidance in the area from HUD was long and complicated, but this guidance is designed in a format that is easy-to-understand and offers a step-by-step guide for housing providers, condominium associations, homeowners associations and the like to determine if a reasonable accommodation request for an animal should be granted. https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
A little background for those of you who aren’t familiar with this issue:
Under the Fair Housing Act, if a housing provider has a rule, practice or policy in place that limits an individual with a disability from the equal opportunity to enjoy or use a dwelling, the individual may request a reasonable accommodation and have a ‘change, exception or adjustment’ made. That reasonable accommodation request may be made in whatever way the individual making the request is the most comfortable and should include 1) a statement that a disability exists 2) the rule the individual would like waived and 3) an explanation as to how waiving the rule will allow the individual to enjoy or use the dwelling. Over the last decade, the most common reasonable accommodation issue that housing providers have faced is the request for a no-pet policy to be changed to allow for an animal.
How would this new guidance have guided my responses to the frustrated landlord with his “emotional support pig” situation?
Language is important.
HUD recognizes two types of assistance animals: 1) service animals as defined by the Americans with Disabilities Act (ADA) and 2) support animals.
The ADA defines a service animal as, “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.” In certain situations, a miniature horse may also be a service animal under the ADA.
HUD clarifies that support animals are “other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities”
If an animal does not meet the requirements of the ADA to be a service animal and also does not meet the criteria of a support animal, that animal is a pet and all of the rules regulating pets can be enforced.
Pigs are ‘unique animals’ and that’s important.
The 2020 guidance from HUD also provides two categories for support animals those that are “commonly kept in households” and those animals that are “unique”. According to HUD a “dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes” would be an animal commonly kept in a household.
A pig would not be considered an animal commonly kept in a household and the guidance from HUD has a different standard for ‘unique animals.’ “If the individual is requesting to keep a unique type of animal that is not commonly kept in households as described above, then the requestor has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” How would an individual meet this substantial burden? HUD provides the following:
“Reasonable accommodations may be necessary when the need for a unique animal involves unique circumstances …
- The animal is individually trained to do work or perform tasks that cannot be performed by a dog.
- Information from a health care professional confirms that:
- Allergies prevent the person from using a dog; or
- Without the animal, the symptoms or effects of the person’s disability will be significantly increased.
- The individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.”
What work does the pig do?
It is not acceptable to ask for details about the disability of the individual. However, an important question for any housing provider to ask is “What work does the animal do?” There are no training requirements for a support animal, but it is expected to perform a function related to alleviating a symptom of the individual’s disability.
Do local ordinances allow for pigs?
If the ordinances adopted by the local government, either city or county, don’t allow for a pig to be located there, then the pig is not allowed.
Trista Curzydlo, JD, is a graduate of Washburn University, School of Law. Her extensive legal experience includes serving as Assistant Legal Counsel to a governor and as an Assistant District Attorney assigned to the Consumer Fraud division. Trista is the former Government Affairs Director and Legal Counsel for the REALTORS® of South Central Kansas and the South Central Kansas MLS. Trista now speaks nationally on topics related to real estate law and ethics. This article is reprinted by permission of Trista Curzydlo and C4 Consulting, LLC.