service_animalYou moved into a homeowner’s association where pets are not allowed. Or maybe you serve on the Board of Directors of a homeowner’s association where there is a “no pets” policy. Perhaps that is the reason you chose to move into that community or it was of one of several reasons. Then one day, you walk by one of your neighbors who is strolling along with his dog. You immediately take the issue to the Board of Directors or to your colleagues on the Board of Directors, but they do not take any action.

Who is right? Well, as so often is the case, it depends.

The reason it depends is because under certain circumstances, one’s disability may entitle him/her to the right to have an “assistance animal.” Assistance animals are sometimes referred to as “service animals,” “assistive animals,” “support animals,” “therapy animals,” or some other name. But in the context of our discussion here, we will refer to them in the aggregate as assistance animals.

The need for an assistance animal can go beyond situations with which we may be familiar, such as a guide dog for someone who is sight-impaired. Under certain medical and psychological conditions, there may be emotional needs for an assistance animal as well.

Let’s start with some basics. Federal housing laws prohibit discrimination on the basis of a disability. In general, a disability is considered to be a physical or mental impairment that substantially limits one or more major life activities.

We naturally think of animals as pets, but according to the Department of Housing and Urban Development, an assistance animal is not a “pet.” “It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” Dogs are the most common assistance animal, but (unless the property at issue falls within the scope of the American with Disabilities Act) it does not have to be, nor does the animal need to have any specific training to be an assistance animal.

In general, a housing provider needs to consider two questions:

  1. Does the person seeking to use and live with the animal have a disability?
  2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

In general, there needs to be a nexus between the disability and the animal which will provide the necessary support. If the answer is no to either of the above questions, the Fair Housing Act and Section 504 of the Rehabilitation Act do not require a modification to the “no pets” policy, and a reasonable accommodation request may be denied. If the answers are yes, however, federal law requires the housing provider to modify or provide an exception to a “no pets” policy to permit a person with a disability to live and use an assistance animal.

petOne question that often arises is the extent to which the association can make inquiry regarding the veracity of the claimed disability. In general, the association can do so. Housing providers may ask individuals whose disabilities are not readily apparent or known to submit reliable documentation of a disability and their disability-related need for an assistance animal. If the disability is apparent or known but the need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the need for an assistance animal. This proof could come in the form of a letter from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates one or more of the identified symptoms or effects of an existing disability. Only some assistance is necessary; it is not required that the assistance animal completely solve or cure disability-related symptoms. Furthermore, be advised that the association cannot delve into details of the disability and cannot make the request for documentation when the disability-related need is already known (e.g., a known sight-impaired person need not provide demonstration that he needs a guide dog).

The reasonableness of the accommodation can often depend on the circumstances. For example, the association need not make the accommodation if doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the association’s services. In addition, and in general, breed, size, and weight limitations cannot be applied to an assistance animal. However, if the specific assistance animal poses a direct threat to the health and safety of others that cannot be reduced by another reasonable accommodation, the request may be denied. In addition, if the specific assistance animal would cause physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation, the request may be denied. In general, the law makes some effort to balance the rights of the co-owners at the project with the rights of the disabled under these circumstances.

As you can probably tell, there are a number of subtleties and vagaries in this area of the law and we submit that it is not safe for you to wade into these waters alone. We are experienced in drafting bylaws and other forms to comply with federal law and regulations and to otherwise give you specific advice regarding a pets policy vis-à-vis federal law. Associations lacking the proper legal guidance can and have been hit with sizable fines and judgments for failure to allow assistance animals under the appropriate conditions. Give us a call to speak with one of our attorneys at (248) 644-4433, or email us at bmeisner@meisner-law.com to schedule a consultation in order to make sure this does not happen to you.