The Fair Housing Act (FHA)

There are four major federal laws that impact disabled Americans and service dogs. Those four laws are the Americans with Disabilities Act (ADA), The Rehabilitation Act (Rehab Act), the Air Carrier Access Act (ACAA), and the Fair Housing Act (FHA). Each law provides different protections and clarifications on the rights of businesses and disabled individuals. If you have a service dog, or you are considering getting one, it’s critical that you are familiar with these laws.

Congress enacted the FHA in 1968 with the main goal being to prevent discrimination in housing based on race. It also prohibited discrimination based on sex or religion. In 1988 an amendment to the FHA was passed and protection was extended to prohibit discrimination based on disability or familial status.

The FHA protects people not just once they are renting but throughout the whole process of obtaining housing. The Department of Housing and Urban Development (HUD) explains that, “The act protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing related activities.”

One of the most important things to understand is what types of housing are and are not covered by the FHA. While most housing is covered there are some exceptions. HUD outlines that the act “…exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members.” If you have more questions about what types of dwellings may or may not be covered I recommend looking at Psychiatric Service Dog Partners (PSDP) extremely helpful flowchart.

Note: Dorms and on campus housing are not exempt. A couple of court cases have ruled that on campus housing meets the definition of a “dwelling” as outlined by the FHA.

In order to have a legitimate service dog or emotional support animal the handler must be disabled. This means they are automatically protected by the FHA. Both service dogs and ESAs are covered under the FHA. However, service dogs in training are not covered. In order for the dog to be covered while it’s in training the easiest option is to classify it as an ESA until their training is complete. It’s important to remember that in order to qualify for an ESA a person must be disabled.

If you are moving into non-pet friendly housing with a service dog you do not need supporting documentation. In 2020 HUD released a helpful guidance document that instructs landlords they should only ask the two ADA questions if it’s not readily apparent that the dog is trained to help with a disability. Examples of it being readily apparent would be things like a guide dog leading a blind person or a dog pulling a wheelchair.

Despite the fact that you don’t need supporting documentation you should still request a reasonable accommodation. I would recommend doing this by typing up a document explaining you have a service dog that is trained in work or tasks that mitigate your disability. Make sure that you clearly articulate what your dog does to assist you. I would sign and date it and then have your landlord sign and date it. You should each keep a copy for your records. This helps prevent miscommunications and it gives you a legal paper trail should that ever become necessary.

If you have a service dog in training that you are classifying as an ESA, or if you just have an ESA, you may still need supporting documentation. Most often this would be in the form of a doctor’s note. If you aren’t sure what the letter should include or look like I recommend checking out Psychiatric Service Dog Partners letter templates.

While a landlord is not allowed to charge any kind of pet fee or deposit for an assistance animal they can require that a tenant cover the cost of any damage done by an assistance animal to a dwelling or common area. Cleaning up behind your animal and generally making an effort to be respectful of those living around you can go a long way towards preventing issues with other tenants or your landlord. It’s important to remember that your actions may influence how future individuals with assistance animals are treated.

The FHA does not require that an accommodation be made for an assistance animal that poses a direct threat to the health and safety of others. This would include things like a dog that had been deemed dangerous by a court. This determination cannot be based on size or breed and court cases have found that even in areas that have breed restrictions the FHA supersedes those types of local ordinances. Landlords also do not have to allow nuisance behavior like excessive barking, aggression towards people or other animals in the building, etc…

Resources & References

• “The Fair Housing Amendments Act of 1988: The First Decade” by Michael H. Schill & Samantha Friedman
• “The Fair Housing Act I” published by the U.S. Department of Justice
• “The Fair Housing Act II” published by the U.S. Department of Justice
• “Housing Discrimination Under the Fair Housing Act” published by U.S. Department of Housing and Urban Development
• “History of Fair Housing” published by the U.S. Department of Housing and Urban Development
• HUD 2020 Assistance Animal Guidance Document published by the U.S. Department of Housing and Urban Development
• Fair Housing Act Exemption Flowchart published by Psychiatric Service Dog Partners
• Housing published by Psychiatric Service Dog Partners
• Service Dog Letter Templates published by Psychiatric Service Dog Partners
• “FAQ on Emotional Support Animals” published by Michigan State University
• “Do You Qualify for a Service Dog” by Katie Jesseph
• “The Americans with Disabilities Act (ADA)” by Katie Jesseph

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Featured image by Patrick Perkins on Unsplash