On October 24, 2018, Governor Wolf signed HB 2049 into law as Act 118. The Assistance and Service Animal Integrity Act (“ASAIA”), is Pennsylvania’s initial legislative response to the growing concern among property managers, landlords, and homeowners associations regarding false or fraudulent claims by individuals asserting an entitlement to support from emotional support and/or assistance animals.

One of the major complaints that landlords, property managers, and homeowners associations express focuses on the lack of regulation governing what criteria must be met in order for an animal to qualify as a service animal, assistance animal, or emotional support animal. Another growing area of concern is the lack of regulation regarding the documentation needed to support a claimed need for an emotional support or assistance animal. This lack of regulations, guidelines, or even standardized training protocols has led to an internet-based cottage industry that allows a person to obtain documentation supporting a ‘need’ for an emotional support or assistance animal simply by paying a fee, has flourished. As a result, concerns of fraud or abuse perpetrated by people who do not have physical, emotional, or psychological needs for emotional support or assistance animals have become wide-spread. This adversely impacts those individuals who have true need for these types of support services.

There is no question that landlords and homeowners associations can restrict or prohibit tenants or owners living in the landlord’s property or within the association from having animals. Likewise, they can limit the size, weight, breed, even the number of animals housed on a property. When the tenant or resident (current or prospective) indicates a need for an emotional support or assistance animal, the landlord or homeowners association executive board must consider this stated need as a request for a reasonable accommodation to those rules or prohibitions. The Federal laws pertaining to requests for reasonable accommodation requests do not require animals to be trained or certified; similarly, the Pennsylvania Legislature did not take steps to regulate what animals may and may not function as emotional support or assistance animals, nor did it take steps to define how an animal can become an emotional support or assistance animal. The ASAIA does, however, offer some limited protections for landlords and homeowners associations who are often direct victims of this type of fraud, by placing some parameters on the documentation supporting the claimed need for an emotional support or assistance animal.

The ASAIA defines an “assistance animal” to be an animal other than a service animal (which has different definitions and criteria) that qualifies for a reasonable accommodation under the Fair Housing Act, Section 504 of the Rehabilitation Act, or local law. It specifically includes emotional support animals within this definition. The ASAIA authorizes landlords and/or the executive board of the homeowners association to request documentation of both the disability and the related need for the assistance animal, provided the disability and/or the need is/are not readily apparent. While the specific authority to request documentation seems to provide some relief to landlords and associations, the Act establishes a fairly low burden of what “documentation” may be requested.

Consistent with the guidance that the U.S. Department of Housing and Urban Development (“HUD”) has offered regarding emotional support/assistance animals, the ASAIA permits landlords and homeowners associations to request written documentation that identifies the disability and/or the disability-related need that the assistance animal will be addressing for the requesting party. The ASAIA also requires the written authorization to be “reliable and based on direct knowledge” of both the disability and the disability-related need that the assistance animal will support. The HUD guidance allows “housing providers” to request the party seeking the accommodation to submit “reliable documentation,” the ASAIA adds the additional requirement that it be based on direct knowledge. Some industry experts have expressed concern that this additional requirement may be inconsistent with the protections offered by the various Federal, state and local laws that protect individuals’ access to housing; it will be interesting to see if and how the courts interpret this additional requirement.

Property owners and homeowners associations will be pleased to know that the ASAIA provides for possible criminal sanctions for individuals, including the individual requesting the accommodation, who knowingly misrepresent that an individual has a disability and the need for an assistance animal. Perpetrating such fraud can lead to being convicted of a third degree misdemeanor. Entities providing such unsupported documentation face a lesser offense. Creating a document, providing a document, or providing a harness, vest or other equipment that falsely represents that an animal is an emotional support or an assistance animal is a summary offense. Will the ASAIA truly provide some level of comfort to landlords and homeowners associations by bringing a level reliability to requests for reasonable accommodations in housing scenarios? That is something that only time – and the courts – will reveal.

One other noteworthy aspect of the ASAIA deserves mention; the ASAIA grants immunity to landlords and homeowners associations that grant reasonable accommodations to individuals who have emotional support/assistance animals, from harm caused by those animals. Specifically, the ASAIA provides that the landlord and/or executive board of the homeowners association will not be liable for any injury or property damage caused by an assistance or support animal that is allowed in or within the property, provided the animal qualifies for a reasonable accommodation under the applicable federal, state, or local laws. This, at least, is one aspect of the ASAIA that potentially offers some protection landlords and homeowners associations that are compelled to permit animals on a property that would otherwise be lawfully excluded.