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.