Fair Housing Act

One thing I have noticed with the pandemic is that legal bloggers have shifted what issues they are talking about to anything related to Covid-19. That said, there are other issues besides Covid-19 going on. For example, service animals and emotional support animals in housing. I am aware of reports from those in university towns where off campus complexes catering to students are faced with a significant number of tenants in the complex claiming their animal is an emotional support animal. What is such a landlord to do? As already mentioned here, the latest circular from the Department of Housing and Urban Development is a big mess. States are coming up with their own ideas in this area as well. For example, Illinois enacted the Assistance Animal Integrity Act, effective January 1 of 2020. The timing of the bill’s enactment is such that it would have been signed by the Illinois governor before Housing and Urban Development came out with its latest circular. I am licensed in Georgia, Illinois, and Texas. Accordingly, I do have the ability to parse Illinois law. I thought it would be useful to do that here because it shows one approach a State is taking to deal with emotional support animals in housing. I will also add some more thoughts of my own, particularly with respect to how such state laws interact with the latest circular. As usual, the blog entry is divided into categories and they are: the Illinois Assistance Animal Integrity Act explained; and thoughts/takeaways on the Illinois Assistance Animal Integrity Act. The reader is free to look at either of the categories or both.

I

The Illinois Assistance Animal Integrity Act Explained:

1. Assistance animal is defined as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act.
2. Disability is defined as a person with any physical or mental impairment or record of such impairment satisfying the definition of handicap under the Fair Housing Act or the definition of disability under the Illinois Human Rights Act.
3. Housing provider means any owner, housing provider, property management company, property manager, government entity, condominium board, condominium association,, cooperative, or related entity, and any of its agents or employees, engaged in the selling, leasing, management, control, or governance of residential housing.
4. Reasonable accommodation has the meaning provided under the federal Fair Housing Act or the Illinois Human Rights Act
5. Therapeutic relationship refers to the provision of medical care, program care or personal care services made in good faith for and with actual knowledge of an individual’s disability and that individual’s disability related need for an assistance animal by: 1) a physician or other medical professional; 2) a mental health service provider; or 3) a nonmedical service agency or reliable third-party in a position to know about the individual’s disability.
6. “Therapeutic relationship does not include an entity that issues a certificate, license, or similar document that purport to confirm, without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal, that a person: (a) has a disability; or (b) needs an assistance animal.”
7. A housing provider may require a person to produce reliable documentation of the disability and disability related need for the animal only if the disability or disability related need is not readily apparent or known to the housing provider.
8. Housing providers may ask a person to make the request on a standardized form, but it cannot deny the request if the person did not use the form to submit documentation otherwise meeting the requirements of the Act.
9. If a housing provider received a request for more than one assistance animal, it may request documentation establishing the disability related need for each animal unless the need for an animal is apparent.
10. Any documentation that a person has a disability and requires the use of an assistance animal as a reasonable accommodation in housing under the federal Fair Housing Act or the Illinois Human Rights Act shall: 1) be in writing; 2) be made by a person with whom the person requesting accommodation has a therapeutic relationship; and 3) describe the individual’s disability related need for the assistance animal.
11. A housing provider can deny a documented request for an accommodation or rescind a granted request if: 1) the accommodation imposes either: i) an undue financial and administrative burden; or ii) a fundamental alteration to the nature of the operations of the housing provider; or 2) after conducting an individualized assessment, there is reliable objective evidence that the specific assistance animal: i) poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; ii) causes substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation; or iii) has engaged in a pattern of uncontrolled behavior that its handler has not taken effective action to correct.
12. If the initial documentation provided by the person requesting accommodations does not satisfy ¶ 10 above, the housing provider may require additional supporting documentation. If the initial documentation is not sufficient to show the existence of the therapeutic relationship as defined in the Act, the housing provider may request additional information describing the professional relationship between the person and the individual with the disability.
13. A housing provider cannot deny an assistance animal solely due to the disability related needs of another resident. Instead, it has to attempt to balance the disability related needs of all residents.
14. If a housing provider bills for damages caused by pets, they can do the same for animals protected by the Assistance Animal Integrity Act. That said, pet related deposits, pet fees, or related pet assessments are out. Also out, is demanding that a resident within the assistance animal procure special liability insurance coverage for the assistance animal.
15. The Act cannot be construed as requiring documentation of a specific diagnosis regarding the disability or disability-related need.
16. The housing provider does have the ability to verify the authenticity of any documentation submitted.
17. If an assistance animal causes injuries to an individual, the landlord is not liable for that.

II

Thoughts/Takeaways on the Illinois Assistance Animal Integrity Act

1. The Illinois Assistance Animal Integrity Act defines an assistance animal as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act. But what does that mean? As we have discussed previously, the only place assistance animals are defined with respect to fair housing is in circulars. With respect to the Illinois Human Rights Act, you do see a mention there in the definition of disability of guide dogs, hearing dogs or support dogs. I didn’t see any definition in the Illinois Administrative Code, after doing a quick search, with respect to what those terms mean, but that doesn’t mean it doesn’t exist.
2. The Illinois Assistance Animal Integrity Act says disability under the Act means the same thing as handicap under the Fair Housing Act. Here is the thing. My colleague Richard Hunt has written several times in his blog, which is in my blogroll and can be found here, that handicap under the Fair Housing Act does not necessarily mean at all what it means under the ADA because the Fair Housing Act was not amended when the ADA was. So, despite the definition of handicap under the Fair Housing Act strongly resembling the definition of disability under the ADA, a reasonable argument exist that handicap is looked at in the way disability was looked at prior to the amendments to the ADA. That distinction can be very important because that means Toyota Motor and Sutton are still in play. In other words, a substantial limitation on a major life activity under the Fair Housing Act could very well be a limitation that severely restricts or prevents a person from performing a major life activity of central importance to most people’s daily lives. Also, per Sutton, you can factor into the equation mitigating measures with respect to determining whether a person has a disability.
3. The Illinois Assistance Animal Integrity Act also says that disability means the same thing as the definition of disability under the Illinois Human Rights Act. However, the Illinois Human Rights Act has a very interesting definition of disability that doesn’t closely resemble the definition of a disability under the ADA. In particular, 775 ILCS 5/1-102(I), (I)(2) says that disability means a determinable physical or mental characteristic of a person, including, but not limited to, a determinable physical characteristic necessitating the person’s use of a guide, hearing or support dog, the history of the characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder in which characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. I could see lots of litigation over whether the characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. The Illinois definition of disability in its Human Rights Act is very unusual.
4. The reason I put the section defining what a therapeutic relationship does not include in quotation marks is because the punctuation is very funny. The phrase, “without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal,” is entirely encapsulated in commas. Accordingly, is this phrase restrictive or parenthetical? If it is restrictive, it means that entities issuing certificates, licenses, or other similar documents can continue to do so and have it counted as sufficient documentation if they conduct a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal. However, if it is parenthetical, then an argument exists that documentation from entities issuing certificates, licenses, or similar documents purporting to confirm that a person has a disability or is in need of an assistance animal is no longer sufficient documentation. Judging from context, it seems that the phrase would have to be restrictive. Nevertheless, an argument to the contrary does exist.
5. The Act clearly sets forth when documentation can be requested (where the need is not readily apparent), what is necessary for sufficient documentation, and when follow-up documentation can be requested.
6. The Act allows for a variety of ways the documentation can be submitted.
7. This Act is quite a bit different from the circular, which we discussed here. That raises a real question of what is a landlord to do when they are faced with the issue of the Illinois Assistance and Animal Integrity Act allowing for a different approach and having different requirements than the Fair Housing Act circular. In that situation, I believe the Fair Housing Act circular loses out to the applicable state law. Now, you may say wait a minute doesn’t federal law trumps state law? It does. However, the Fair Housing Act circular is not federal law. As we have said before, it is not even in the interpretation of an agency’s own regulations. Accordingly, under Kisor, I don’t see how a federal court would give deference to the Fair Housing Act circular. Accordingly, state law would prevail over the circular. Now, where the state law discriminates against people with disabilities with respect to any conflict with the ADA or with respect to the equal protection clause of the 14^th amendment, that is another question. Remember, excepting the common areas, the ADA does not apply to dwellings. Rather, dwellings are covered by Fair Housing Act.
8. The Illinois approach seems a sensible one, though it is imperfect. The Illinois approach has three big issues: 1) “disability,” is not defined in the same way as it is under the ADA, and the way disability is defined can be very confusing to figure out; 2) it is very unclear whether entity’s issuing certificates, licenses, or other similar document can ever be counted as giving sufficient documentation; and 3) does a landlord have to show both undue financial and administrative burden if using that defense or is it okay to just show one or the other (the Act uses “and,” and not or).
9. Don’t forget about utilizing knowledgeable legal counsel.
10. For those representing housing providers in Illinois, be prepared to defend the housing provider on the grounds that they are doing exactly what Illinois law allows and that the HUD circular is not the governing law per what we discussed in this blog entry.
11. Landlord should be prepared for litigation and pushback from Housing and Urban Development should they decide assistance animals should only be allowed after an application of Toyota Motor and Sutton even though landlord may be perfectly within the law to take that approach.