Comfort Animals Part II

Yesterday, I wrote about comfort animals and how the 9th Circuit Court of Appeals is considering whether a comfort animal can be a reasonable accommodation under the Federal Fair Housing Act. The 9th Circuit is likely to rule whether a comfort animal must be specially trained to ameliorate a disability. Part of the reason that the 9th Circuit Case is so important is that there is a lot of confusion in the law. Some earlier cases have assumed that comfort animals would be a reasonable accommodation. For instance, Crossroads Apartments Associates, 152 Misc. 2d 830, 834, 578 N.Y.S. 2d 1004, (City Ct. 1991); HUD v. Riverbay (HUD ALJ 9-8-94), Fair Housing - Fair Lending ¶25,080 at 25,740-41; and Janush v. Charities Housing Dev. Corp., 169 F. Supp. 2d 1133, Fair Housing - Fair Lending ¶16,618 at 16,618.2 (N.D. Cal. 2000) (request to keep 2 birds and 2 cats as an accommodation for a mentally disabled resident may be required by the Act) have all indicated a possibility that comfort animals may be a reasonable accommodation. More recently, the court in Auburn Woods I Homeowners Assn. v. Fair Employment and Housing Commission (Elebiari), 121 Cal. App. 4th 1578, 18 Cal. Rptr. 3d 669, 2004 WL 1888284 (Cal. App. 2004) has also ruled that comfort animals may be permitted under the California State Fair Housing laws.

The difficulty with even these cases is that the scope of the accommodation is not fully developed. In particular, these cases rarely deal with the issue of what accommodations are necessary to permit a disabled individual equal opportunity to use and enjoy a dwelling. As a result, it is difficult for anyone to determine how much of an accommodation they should make in any particular instance. For instance, in the Janush cases, one court ruled that even if there is a basis for an accommodation, the accommodation should involve fewer than the 2 birds and 2 cats owned by the plaintiff. A later court raised doubts about the number of pets that might be permitted. Even those inclined to permit comfort animals would have probably said that a single comfort animal would be sufficient as an accommodation.

What is a comfort animal?

The Federal Fair Housing Act "FHA" prohibits discrimination against disabled individuals in addition to other protected classes. A residential housing provider is normally required to make reasonable accommodations in its policies, procedures, and practices that are necessary to afford a disabled individual with an equal opportunity to use and enjoy the dwelling. In communities that restrict pets, that means that the community cannot prohibit seeing eye dogs to someone legally blind. Some individuals have attempted to use the FHA to permit them to keep pets that would otherwise be prohibited by the community. They have claimed that they are disabled and that an animal would make them feel better.

There are a number of problems with this claim. First, to the extent that these individuals are not truly disabled, they trivialize and undermine the law that is intended to provide needed protections for those who are truly disabled. When the law was first adopted, it was assumed that disability was something that was easily proven. The Courts have limited the scope of disability in a number of ways. Therefore, an individual may not be legally disabled despite a note from their doctor. We normally recommend to our clients that they obtain a written certification from a doctor to validate the disability unless it is obvious.

Second, two courts have ruled that a comfort animal is not covered by the reasonable accommodation provisions of the Fair Housing Act. In re Keena Homes Cooperative Corp., 210 W. Va. 380, 557 S.E. 2d 787; Fair Housing - Fair Lending ¶18,328 (2001) andPrindable v. AOAO 2987 Kalakaua, 304 F.Supp. 1245, 2003 U.S. Dist. LEXIS 23744 (D. Haw. 2003) have ruled that in order for an animal to be covered by the reasonable accommodation provisions of the law, it must be individually trained to ameliorate the effects of the disability. The 9th Circuit is currently hearing the case and a decision is expected in a few months.