Board members are frequently approached by a resident requesting to maintain a service animal in the community, despite restrictions, or even a complete prohibition against “pets” being kept on the property within the governing documents of the community. Often, board members have concerns that if they grant the request, it will result in the loss of the pet restrictions and cause a proliferation of animals in the community. While these concerns are understandable, in that the laws are skewed to the protection of the requesting resident, board members should be aware that failing to properly handle a service animal request could expose the Association to a potential successful claim of discrimination.
Various Federal, State, and local laws (including, but not limited to, the Federal Fair Housing Amendments Act of 1988, as amended) create certain protected classes for individuals with physical and mental disabilities. Under the law, upon request, an association must make a “reasonable accommodation” to its policies and procedures, including any pet restrictions, when necessary to provide a disabled person an equal opportunity to use and enjoy his or her dwelling.
Determining whether a resident is “disabled” under the law can be difficult for board members. An added challenge is determining whether the requested animal is sufficiently necessary to provide the “disabled” person an “equal opportunity” to use his or her dwelling. This is particularly the case when the disability is emotional rather than physical (i.e., a request by a visually-impaired person to maintain a seeing-eye dog is easily identifiable). Boards are entitled under the law to require the submission of information that it reasonably determines to be necessary to properly evaluate a request to house a service animal within the Community that otherwise prohibits such animals. These issues typically do not lend themselves to a “black and white” conclusion and require a careful analysis of several factors with the facts of each case.
Within the criteria to be satisfied is whether the requesting party provides sufficient documentation from a qualified medical professional demonstrating the nature of the alleged disability, the specific major life activity that is impaired by the disability, and the specific manner in which the keeping of the animal within the premises will afford the resident an “equal opportunity” to enjoy his or her dwelling. It is not required for the resident in a community association context to prove that the animal is “officially certified” or has specialized training to be designated as a service animal. Additionally, if the request is ultimately granted, the board will likely still be able to adopt reasonable rules concerning the maintenance of the animal on the premises by the requesting party, such as permissible areas to walk the animal, the requirement of cleaning up after the animal, and to ensure that the animal does not create a nuisance to other residents.
It is not advisable to deny a request to maintain a service animal without undergoing a careful evaluation of the documentation/information submitted in each such case. Likewise, it is suggested that the board conduct appropriate due diligence before simply approving any request for a service animal. Should a board receive a request, the board should consult with its legal counsel to identify the best approach under the governing documents of the Community.