In recent months, formal requests to pet restricted communities for a reasonable accommodation to keep an emotional support animal has increased significantly. Additionally, there have been new court decisions and other developments in the Fair Housing laws since our last article in Legal Morsels in 2011 (see https://hjq.a4f.myftpupload.com/how-community-associations-should-properly-handle-service-animal-requests/). The following updates and supplements our prior posting on the topic.
Board members frequently encounter issues regarding whether an individual has the right to have an “assistance animal” reside in the Community that would otherwise violate a pet restriction in the governing documents (“assistance” animals are also commonly referred to as “service animals”, “emotional support animals”, or “therapy animals”). These types of issues have significantly increased in the last several years, and board members must be aware that failing to properly respond to an assistance animal request could expose the association to a potential claim of discrimination under Federal, State, and Local Fair Housing laws.
The Fair Housing laws protect against housing discrimination and require the Association to approve an assistance animal to be maintained in the community as a “reasonable accommodation” to the pet restrictions. The issue becomes difficult for boards to evaluate when the disability is not readily known (such as emotional impairments), or the need for the animal is not readily apparent. In evaluating whether an individual is entitled to an assistance animal, the board may request reliable medical documentation concerning the nature of the disability and the disability-related need for the animal.
Boards must be aware that specialized training or “certification” of the assistance animal is not necessary (in fact, many of these “certifications” are easily obtained over the internet). Also, breed, size, and weight limitations may not be applied to an assistance animal, and, while dogs are the most common type of assistance animal, other types of animals could also be an assistance animal. Further, boards cannot require individuals to pay a monetary deposit for an assistance animal, nor can the board request access to medical records or any extensive information pertaining to the disability.
Rather, under the Fair Housing laws, boards may only determine whether the person seeking the assistance animal has a disability (which is a physical or mental impairment that substantially limits a “major life activity”, such as sleeping, breathing, walking), and whether the person seeking the assistance animal has a disability-related need for the animal. The Board may request that such information regarding the necessity of the animal come from a qualified medical professional, such as a physician, psychiatrist, or other mental health professional who is familiar with the disability of the requesting party. For instance, while every request must be evaluated on a case-by-case basis, it is unlikely that a podiatrist or chiropractor would be sufficiently qualified to diagnose and treat an emotional disability, such as depression or a similar mental illness. If the individual submits sufficient information from his or her medical provider to establish the disability and that the animal in question will provide some type of disability-related assistance or emotional support, the board must approve the reasonable accommodation request and allow the assistance animal in the Community. Boards must also exercise caution to protect the confidentiality of any medical information submitted.
To avoid unintended violations of the Fair Housing laws, boards should consider adopting formal procedures to evaluate the request. For instance a written discrimination policy can be adopted to include assistance animal registration forms, a reasonable accommodation application package, and rules governing the conduct of assistance animals. Such policy will assist to streamline the request process and assist the parties in having a clear understanding of assistance animal and discrimination issues, as well as ensure that a response is not unreasonably delayed, since the failure to respond could be considered the equivalent of a “constructive”denial. Also, if a dispute arises regarding the request, showing a record of the formal procedures being implemented will help demonstrate that the request received proper consideration. Additionally, it may be prudent to appoint one or two board representatives familiar with Fair Housing issues as the designated persons to communicate with the requesting party concerning this matter.
If a board is unsure as to whether the requesting individual has submitted sufficient information to support the request, it is not advisable to immediately deny (or approve) the request. The appropriate course of action is to promptly contact your legal counsel to evaluate the information so that a response can be timely provided to the individual. Further, legal counsel should be contacted to assist in the development and drafting of the above-referenced comprehensive discrimination policy.