Am I Disabled under the Fair Housing Act and don’t realize it?

Very possible! According to the US Department of Housing & Urban Development [HUD], the federal agency enforcing the federal Fair Housing Act, a disability person is-

“Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.”

If any of your major life activities are substantially limited you might be disabled under the Fair Housing Act.

Which major life activities would have to substantially limited to be qualified as disabled under the Fair Housing Act?

Major life activities would include any of the following:

  • walking
  • talking
  • hearing
  • seeing
  • breathing
  • learning
  • performing manual tasks
  • concentrating
  • interacting with others
  • caring for oneself

So, if your ability to sleep is “substantially limited,” you would be disabled under the Fair Housing Act. You would need to verify your disability through a “reliable” source for HUD to acknowledge that you are disabled and entitled to the housing rights protected under the Fair Housing Act.

Do I already qualify to have an Emotional Support Animal or Service Animal?

If you already have a major life activity which is substantially limited then you would be considered a disabled person under the Fair Housing Act. The next step would be to verify your disability through a reliable source, preferably a mental health professional like a Licensed Clinical Social Worker, a Licenses Mental Health Counselor, a Psychologist, or a physician- especially if your disability is emotional, mental, psychological, or “not readily apparent.” Please reach us and we can put you in touch with a mental health professional trained to verify your disability in a qualified letter.

Do I already have an Emotional Support Animal or Service Animal and don’t realize it?

This is very possible!  If you qualify as disabled, as defined above, then your next step would be to verify your disability-related need for your animal to qualify as an assistance animal.  If your animal currently helps to address a symptom or effect of your disability, then it already might qualify as an assistance animal as defined below.

What is an Assistance Animal as defined by the U.S. Department of HUD?

An “Assistance Animal” is the recent term HUD adopted to refer to an Emotional Support Animal or a Service Animal in the housing accommodations process.  In other words, HUD has decided that there should be NO difference in treatment between ESAs and Service Animals- they are both equals and neither should be treated with preference.  Unfortunately, many housing providers think ESAs must undergo difference scrutiny to be granted a housing accommodation- this is untrue!

Do Service Animals have priority over Emotional Support Animals during the housing process?

No! This is a huge misunderstanding carried over from public accommodations which should not be applied to housing accommodations.  According to HUD there is NO difference between a Service Animal or an Emotional Support Animal for the purposes of housing and reasonable accommodations.  In fact, both ESAs and Service Animals are considered “Assistance Animals” for the purposes of fair housing and neither are to be treated preferentially.

Does the ADA or the Fair Housing Act apply when I am requesting a housing accommodation for my assistance animal?

It is the Fair Housing Act which has priority over the ADA laws when it comes to the review of a housing accommodation for an emotional support animal or service animal.  All housing providers, including the Public Housing Authorities which provide federally funded subsidized housing, “may not use the ADA definition [of “service animal”] as a justification for reducing their FHAct obligations.” [75 Fed. Reg. at 56166, 56240 (Sept. 15, 2010)] Remember that both Emotional Support Animals and Service Animals are equals under the FHAct, and therefore both should be subjected to the same review process outlined by HUD.  If your landlord is treating ESAs differently than Service Animals, your landlord might be violating the FHAct.

How should I request a Reasonable Accommodation?

It is best to request your accommodation via email to your landlord, property management company, or housing provider so if you are denied the accommodation, you have record of the reason provided for the denial.  This is important for evidence reasons and also demonstrates you are participating in the interactive dialogue process.

Are Colleges and Universities required to follow the ADA or the Fair Housing Act when addressing housing accommodations for full time students living on campus in college owned housing?

If the student lives in the dormitory, or lives in school-owned housing, the Fair Housing Act would apply.  This means that the student must be able to use and enjoy the entire dwelling with their assistance animal, including the common areas and amenities.

Can Pit Bull, German Shepherd, Rottweiler, or Doberman Pinscher dogs be banned from housing because of their Breed and Size?

No! Breed, size, and weight limitations may not be applied to an assistance animal.

If I live in a City or Town which bans my assistance animal because of its breed, are my housing rights protected by the Fair Housing Act?

If the student lives in the dormitory, or lives in school-owned housing, the Fair Housing Act would apply.  This means that the student must be able to use and enjoy the entire dwelling with their assistance animal, including the common areas and amenities.

Can a property require medical documentation, or require a letter from a “doctor only” to prove my disability?

A property cannot require medical documentation, or require detailed medical information, nor can a property require the documentation come only from a doctor or physician.  According to HUD, If the disability is “not readily apparent” or known by the housing provider, like PTSD, Autism, or TBI, the housing provider may ask for “reliable documentation” to verify the disability.  According to HUD, a reliable source could be “a doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability.”  So, a property cannot require the reliable source be a doctor, however a doctor could be a reliable source.

Can a property request, or require, to speak with my medical professional?

No!  According to HUD the property cannot even ask for permission to speak with your medical professional!  Properties which require you sign a waiver so they can communicate with your medical professional are violating the fair housing act as well.

Can my housing provider prohibit me from taking my Emotional Support Animal or Service Animal to the common areas and the amenities on the property? Can I take my animal to the pool area?

If you are disabled and require an assistance animal, you would be able to take your animal anywhere on the property you would normally go- this would include the club house, the pool area, and any social event.

Can a housing provider deny my assistance animal because their insurance company prohibits my dog’s breed? Can I be required to pay for additional coverage for my assistance animal?

Your assistance animal is not a pet, and therefore it cannot be subjected to pet rules, nor should you be required to pay any additional fees because you require an assistance animal.

What should I do if a housing provider is denying my assistance animal or violating my fair housing rights?

If you have been subjected to any of the above mentioned fair housing violations you should reach us so that we can connect you with our fair housing experts.  We have formed a great working relationship with a national nonprofit fair housing organization who has agreed to provide all of their fair housing service to our members for free.  We can connect you with an expert who can help you file a fair housing complaint and protect your fair housing rights- at no cost to you.

Would the housing provider know that I filed a fair housing complaint? I am afraid of the landlord retaliating or threatening me- am I protected?

When you file a fair housing complaint and it is submitted to the US Department of Housing and Urban Development, the housing provider would never know the complaint was filed- it is kept confidential at first.   If HUD believes you have a prima facie case, they will require you to sign a finalized fair housing complaint for your approval.  At that point HUD, backed by the Department of Justice, will serve your housing provider with official documents alleging violations of the Federal Fair Housing Act and require the housing provider respond to a number of questions and document requests within 10 days.  No housing provider wants to be served by a Federal agency alleging violations of federal law!  Along with the official notification, the housing provider is notified that there is a very serious “Anti Retaliation, Threatening, and Intimidation” law which prohibits them from interacting with you in any threatening way.