One of the hottest topics right now is the issue of assistance or support animals. Many associations are frustrated with the influx of animals in violation of the associations’ “no pet” rules, weight restrictions and even breed restrictions. However, it is important to allow disabled individuals a reasonable accommodation if they provide proper documentation demonstrating a need for the accommodation. The decision on whether an individual should be afforded a reasonable accommodation for their support animal should be made on a case by case basis. The intention of this article is to provide some clarity on this very important and complicated subject.
The Fair Housing Act (FHA), a federal law which prohibits housing providers from discriminating against any individual because of a disability, applies to all condominium, homeowner’s and cooperative associations. The Act generally defines a person with a disability to include (1) an individual with a physical or mental impairment that substantially limits one or more major life activities; (2) an individual who is regarded as having such an impairment; and (3) an individual with a record of such an impairment.1. Courts have defined “major life activity” to mean an activity such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. This list of major life activities is not exhaustive.2. If an individual shows that he or she has a disability then the association, in most cases, must make a “reasonable accommodation” of its rules and regulations if the accommodation is necessary for the individual’s use and enjoyment of the association property. Here, a reasonable accommodation would be to allow the individual to keep its would-be prohibited animal at the association.
The initial step in the association’s analysis is to determine if the person making the request for an accommodation has an obvious disability. If the disability is obvious or known, and the need for the accommodation is apparent, then the association may not request any additional information about the requester’s disability or the need for the accommodation. If the disability is obvious or known, but the need is not apparent, then the association can request information that is necessary to evaluate the disability-related need for the accommodation. If the disability is not obvious, the association may request disability-related information demonstrating the individual has a disability, the individual needs the accommodation, and the relationship between the person’s disability and the need for the accommodation. For example, the association may request documentation showing that the person is disabled, that they need the support animal, as opposed to the animal just being desirable or helpful, and how the support animal reduces the effects of the person’s disability.
The second step in the association’s analysis is to review the information provided and determine whether it sufficiently demonstrates the requestor’s disability and need for a reasonable accommodation. Just because an individual is claiming a need for a support animal doesn’t mean the association must automatically approve the accommodation. The courts have long held that the association has the right to perform a “meaningful review” of the request to determine if an accommodation is required by law. Currently, there are many online services which provide support animal and service animal “certificates” and “IDs” for a small fee. It is important to note that these documents are generally insufficient to demonstrate a need and warrant a reasonable accommodation. Similarly, a doctor’s prescription pad note may be too brief and conclusory to be of any value.3. Therefore, the association may request a letter from someone with knowledge (typically a treating physician or other medical professional) to attest to the person’s disability, how it affects a major life activity, and why the individual needs the support animal to use and enjoy the dwelling. However, the association may not request the entire medical history of the individual and may not request any other overly intrusive information. Also, it is important to keep in mind that the FHA does not require that the animal have any special training. Many people confuse the requirements under the FHA, which governs most community associations, and the requirements under the Americans with Disabilities Act (ADA) which governs public accommodations such as airplanes, restaurants, stores, etc. Specific training is required for “service animals” under the ADA. However, the FHA does not have this same training requirement.
Finally, after obtaining information from the individual making the request, the association must decide whether to approve or deny the accommodation. Courts have held that an association’s failure to make a timely determination after a meaningful review amounts to constructive denial of a requested accommodation “as an indeterminate delay has the same effect as an outright denial”.4. The association should approve the accommodation when the individual has shown that he or she has a disability and has demonstrated the need of the support animal to use and enjoy his or her dwelling. One exception is if the specific animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others. This determination must be made on a case by case basis and cannot be based on mere speculation due to the animal’s height, weight or breed.
Once a support animal is approved, the animal must be permitted on the Association property and must be permitted to go almost anywhere the requestor is permitted to be (there are some exceptions such as inside a pool, in a common area kitchen, etc.–mainly any place that would be considered a health or safety hazard). This also means that an association cannot require that the support animal stay within the individual’s home or unit at all times. In addition, the Association cannot require that the individual pay a deposit for the support animal or require that the animal wear any identifying vest, ID tag, or specific harness.
Community associations must use extreme caution when determining whether an individual’s request for a reasonable accommodation should be approved or denied. Denying an accommodation can make the association susceptible to a HUD complaint for discrimination based on a disability. The association, and possibly the board of directors, individually, may be subject to severe penalties if a determination is made that the association violated the FHA. Therefore, it is important that you allow Tucker & Lokeinsky, P.A. to review all requests for support animals. Our firm has also prepared reasonable accommodation policies and procedures for several different associations. Please contact our office if you are interested in having a policy and procedure created for your association.
- See Joint Statement of the Department of Housing and Urban Development and The Department of Justice – Reasonable Accommodations Under The Fair Housing Act – May 17, 2004.
- Pindable v. Association of Apt. Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1255 (Dist. Court, D. Hawaii 2003).
- Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F. 3d 1277, 1286 (11th Cir. 2014).