Assistance Animals Under the FHA: Domesticated Versus Unique Animals

The FHA protects individuals from housing discrimination in the United States, including individuals with disabilities.  The FHA applies to virtually all types of housing, including privately-owned housing and federally assisted housing with a few limited exceptions.[1]  The FHA requires housing providers to provide reasonable accommodation to individuals with assistance animals, but there are some exceptions.

If the animal is an animal commonly kept in households, reasonable accommodation should be provided under the FHA.[2]  Animals commonly kept in households include dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles, and other small, traditionally domesticated animals.[3]

Reptiles other than turtles, barnyard animals, monkeys, kangaroos, and other non-traditionally domesticated animals are not considered animals commonly kept in households (“Unique Animals”).[4]  For Unique Animals, the FHA does not require that housing providers provide reasonable accommodation, unless certain rare circumstances arise.  For a Unique Animal to be given protection under the FHA, the requestor must demonstrate a disability requiring the specific type of animal.  This may include documentation from a healthcare professional confirming the need for this animal, such as confirming that allergies prevent the person from using a dog or that the animal is specifically trained to do work that a dog could not perform.[5]

Poisonous or Dangerous Animals Are Subject to Stricter Requirements

Unique Animals are subject to stricter requirements, and often require for an individual to show absolute necessity for them, especially when the animal poses a threat to others.[6]  In Assenberg v. Anacortes Housing Authority, Assenberg sued his landlord for not allowing him to keep snakes in his apartment.[7]  After receiving complaints from other residents, his apartment had sent him a Notice to Comply or Vacate and Notice of Intent to Evict based on Assenberg’s violation of the pet policy, which prohibited snakes.  Assenberg responded, claiming that the snakes were his service animals.  To support this statement, he provided a letter from his physician that he was depressed, and the pet snakes were part of his therapy.  The landlord then requested information on whether the snakes were poisonous or otherwise posed risk to others.  Assenberg refused to provide this information.  After multiple issues regarding illegal drug use, his landlord evicted him and Assenberg filed suit, with one of the claims being that his landlord did not make accommodations for his disability by allowing his snakes to reside with him as service animals.  The United States District Court for the Western District of Washington granted the landlord’s request for summary judgment.  The court held that Assenberg had not demonstrated the snakes were necessary for his treatment and that the snakes failed to meet the requirements of service animals.  The Court concluded that the landlord did not deny Assenberg reasonable accommodation.

Based on the Assenberg case and FHA regulations, if you have a black mamba that you would like to have as an assistance animal and covered by the FHA, you will be subject to stricter requirements to prove the assistance animal is necessary.  Not only must you demonstrate that your black mamba can perform tasks that a normal domesticated animal could not, but a court must consider the potential threat and danger your black mamba poses to the public.

Any landlord seeking to exclude an individual’s apparent service or assistance animal should seek legal advice prior to doing so.  These situations must be handled on a fact-specific, case-by-case basis.

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Scott Feir is an experienced attorney representing a broad spectrum of clients, including retail shopping center owners, property management groups, housing authorities, real estate brokers and agents, and construction and design professionals.

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Footnotes

[1]  The accommodation requirements of the FHA do not apply to (A) a private individual owner who rents his own home so long as he (1) does not own more than three single-family homes; (2) does not use a real estate agent and does not employ any discriminatory advertising or notices; (3) has not engaged in a similar sale of a home within a 24-month period; and (4) is not in the business of selling or renting dwellings or (B) owner-occupied buildings that have four or fewer dwelling units.

[2]  FHEO-2020-01 at 12 (January 28, 2020)

[3]  Id.

[4]  Id.

[5]  Id.

[6]  Robert L. Adair, Monkeys and Horses and Ferrets…Oh My! Non-Traditional Service Animals Under the ADA, 37 N. Ky. L. Rev. 415 (2010).

[7]  Assenberg v. Anacortes Hous. Auth., No. C05-1836RSL, 2006 WL 1515603 (W.D. Wash. May 25, 2006).