In January 2020, the U.S. Department of Housing and Urban Development (HUD) issued guidance titled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.” This guidance explains that there are two types of assistance animals in the fair housing context, service animals and those animals – either trained or untrained – that do work, perform tasks, assist and/or provide therapeutic emotional support for individuals with disabilities. This second category, referred to as “support animals” or “emotional support animals,” represents most assistance animals landlords encounter in the housing context. Disability discrimination cases in general represent the vast majority of fair housing complaints filed with HUD; almost 60 percent of HUD complaints allege disability discrimination even though disability is only one of seven protected categories under the Fair Housing Act (FHA).

Background
HUD’s 2020 guidance as well as the “Joint Statement on Reasonable Accommodations Under the Fair Housing Act” issued by HUD and the Department of Justice (DOJ) make clear that support animals are not confined to cats and dogs. The 2020 guidance asks landlords to consider whether the animal is of a type “commonly kept in households,” including the following animals in that category: “dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.” If the animal in question is of this type, the guidance advises the landlord to grant the accommodation if the requestor has provided information confirming the disability-related need for the animal. It then states that, for purposes of this assessment, reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals are not considered common household animals.

HUD’s guidance then describes “unique animals” as any type of animal that does not fall into the “commonly kept in households” category. It states that a requestor with this type of animal “has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal” and is encouraged to submit documentation from a health care professional confirming a need for that animal.

While this guidance is helpful, it is open to interpretation and leaves many housing providers’ questions unanswered. One of those is what constitutes a “small bird.” The bigger question is – as in most reasonable accommodation cases under the FHA – when such an animal may be lawfully denied as a reasonable accommodation for a resident’s disability.

A housing provider may deny such a request: 

• If the requestor has not shown a disability-related need for the request
• If granting the request would impose an undue financial or administrative burden on the housing provider or would fundamentally alter the nature of the provider’s operations
• If the specific animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat
• If granting the request would result in significant physical damage to the property of others despite any other reasonable accommodations that could eliminate or reduce the physical damage. 

Parrots on the Premises 
These questions were recently put to the test in New York. In the Gramercy Park neighborhood in Manhattan, a co-op owner (the Owner) with three parrots had been the subject of numerous complaints by other residents of her co-op apartment building, spanning a 20-year period. Neighbors complained that the parrots were loud – constantly shrieking and squawking – disturbing their peaceful enjoyment of the premises and adversely affecting their mental health.

The Owner did not disclose that she had any animals or a disability at the time she moved to the apartment building in 1999. She originally had two parrots, bringing a third into her home in approximately 2015, after which the complaints began to escalate. In addition to the complaints to the co-op board, residents contacted the city’s Department of Environmental Protection, which visited the property at least 15 times but never actually issued a notice for noise violations.

Only after the co-op board attempted to evict the Owner did she claim that the birds were emotional support animals (although prosecutors dispute the timing of this disclosure). According to the 2020 HUD guidance and the HUD/DOJ guidance, however, a resident may request a reasonable accommodation either before or after acquiring the assistance animal.

The 2020 guidance further states that while an accommodation may be requested even after a housing provider seeks to terminate a resident’s lease or tenancy because of the presence of the animal, “such timing may create an inference against good faith on the part of the person seeking a reasonable accommodation.” The guidance also states that, while most reasonable accommodation requests involve one animal, requests may involve more than one animal when, for example, a person has a disability-related need for both animals. 

During the eviction proceedings, the Owner submitted a note from her psychiatrist stating that she needed all of her parrots “in order to function optimally,” and all three birds needed to stay together as “they are long-term companions of each other and cannot be separated without negative consequences.” She and the prosecutor maintained that she needed the parrots “to ameliorate the effects of her anxiety and depression,” as they provided her with “purpose and a sense of structure to perform daily tasks.”

The Owner filed a complaint with HUD in 2018. She subsequently attempted to sell her unit, but the board rejected the proposed buyer, so she filed another HUD complaint thereafter alleging retaliation. HUD found probable cause to believe that her fair housing rights were violated.

Rather than settling, the co-op board elected to proceed with the case in federal court, resulting in the DOJ filing a lawsuit against the building. The case settled in mid-August 2024 for $165,000 and an agreement by the co-op board to adopt a reasonable accommodation policy regarding assistance animals and to submit quarterly reports to the civil rights division of the U.S. Attorney’s Office. Claiming emotional harm as a result of the failed eviction effort, the Owner left the co-op voluntarily.

One conclusion to be drawn from this case is that parrots will most likely be considered “small birds” within the meaning of “animal type” referenced in HUD’s guidance. More importantly, the ruling should remind housing providers that the bar is high when denying residents’ requests for disability-related support animals. Housing providers should review their policies on reasonable accommodations as related to assistance animals to ensure that they do not unlawfully impose limits on the type or number of assistance animals they allow and that their policies otherwise comply with the FHA.