by Scott Lancelot, HCCP
Tax credit communities are subject to the same Fair Housing Act requirements as private market-rate rental communities. Most of us are familiar with the basic requirements prohibiting discrimination in housing against protected classes, such as race, color, religion, disability and familial status.
LIHTC owners and managers should also be aware of requirements under the law pertaining to pet policies and service/companion animals for disabled persons. The law is very broad, and requires care in application to minimize the potential for complaints. Discrimination complaints filed under this category represent a large portion of overall filings.
Here are the main requirements. You can also find many local resources and information on the Internet (search “service animals, pet policies and discrimination”) that can give you more detailed guidance.
- Communities may have a policy that prohibits pets or, if pets are allowed, places restrictions on size or breed and requires additional fees or deposits. Site staff must understand that service/companion animals are not considered pets and are not subject to any prohibition or restrictions under the pet policy.
- Properties may not refuse to allow service/companion animals requested by residents, regardless of any pet policies that your community may have. You must make a reasonable accommodation if supported by qualified third-party verification.
- Residents with service/companion animals may not be required to pay any pet fees, additional cleaning deposits or pet deposits. Residents are responsible for the supervision, control and behavior of their service/companion animal, but any damages must be taken from normal security deposits. If an animal is not under control or disrupts or threatens harm to the community, the staff must attempt to resolve the problem with the tenant before contacting animal control authorities or initiating other legal action. Complaints must be substantiated and not based upon expectation or speculative behavior.
- There are no clear guidelines on what constitutes a service/companion animal. While most of us think in terms of dogs and cats, a service animal may be of another type, such as fish, reptiles or other nontraditional or exotic pets, if supported by documentation. More than one animal could be required, if properly documented. Service/companion animals do not have to be trained or certified to qualify.
- Companion animals are a type of service animal that provide emotional support to assist people with mental or psychological disabilities and are equally protected as service animals. Experience has shown that many of the requests for service animals fall under this category.
- A person with a disability (defined as a sensory, mental or physical condition that limits one or more major life activities) may request a service/companion animal. Disabilities are not always visible and staff may not inquire about the nature of the disability but must proceed to act on the request as a reasonable accommodation.
- Communities must request that the tenant provide third-party documentation verifying the tenant is disabled and needs a service/ companion animal. The verification should come from a healthcare or mental health provider familiar with the tenant’s history who can attest that the tenant has a disability and needs a service/companion animal to alleviate one or more of the identified symptoms or effects of the existing disability or to use and enjoy the community as would a non-disabled person. A medical professional, non-medical service agency, psychologist or therapist, or another qualified individual who is in a position to know about the disability may provide verification.
- If the request is verified and documented, it will be considered a reasonable accommodation for the tenant and the request must be approved. Because the request involves no physical or structural changes, there are very few instances in which the request could not be approved. To deny the request, you would need to demonstrate that it would impose an undue financial or administrative burden or fundamentally alter the nature of the housing provider’s services. You should contact local fair housing agencies or legal counsel for advice before determining that a request should be denied.
The Americans with Disabilities Act has different definitions for service animals, but tax credit communities must conform to the broader requirements for the Fair Housing Act and Section 504. See HUD notice FHEO-2013-01 (4-25-2013) for further information.
Understanding and following these requirements will assist owners and managers in developing policies to protect against potential complaints of discrimination, which are time consuming and expensive to defend against.
Scott Lancelot is director of tax credit compliance for AIMCO, one of the largest owners of affordable and conventional apartment rental communities in the country. Lancelot has held this position at AIMCO in Denver for four years and is responsible for the monitoring and regulatory compliance of 50 properties in 14 states totaling more than 9,000 units. The bulk of these properties are layered with additional affordable requirements such as Section 8, HOME and Section 236. He has developed LIHTC compliance training and policy manuals for AIMCO.