Brandt Law Group Blog

ASSISTANCE AND SERVICE ANIMALS IN ASSOCIATIONS

by | Nov 16, 2018 | Condominium Law |

THE CHALLENGE

We have all been exposed to recent news stories regarding major airline carriers cracking down on policies concerning assistance animals (also commonly referred to as “emotional support animals,” “comfort animals,” and/or “therapy animals”) due to the rapid increase in individuals bringing inappropriate and/or potentially hazardous animals on board an aircraft filled with people, based on a claim that such an animal is an assistance animal. While some of the assistance animals that make the news may seem outrageous (assistance peacock or squirrel, anyone?) it can be difficult to decipher the law that protects an individual’s right to bring an assistance animal on board an airplane and where the line can be drawn.
The challenges that these airlines are going through, in a very public fashion, are also unfolding within our community associations, in a less headline-worthy manner. Associations and individual homeowners are dealing with the challenges of balancing an individual’s need for an assistance or service animal with the obligation to enforce the association’s governing documents and provide for the community benefits that every homeowner within the association is entitled to receive. These rights can be difficult to balance as community associations grapple with an increased demand from homeowners requesting accommodation for service and/or assistance animals. Community associations provide space in which people are, often times, living in close proximity to one another, have a shared financial interest in the common areas and facilities, and which may be subject to specific regulations in the association governing documents that limit or restrict pets that are allowed to be in units, in the common areas, and/or on the association property. So, how does an association balance the right of an owner to have an assistance and/or service animal while still providing the community benefits that all owners are entitled to? Our advice: follow the law as closely as possible.

THE LAW

The first thing to understand is the difference between a comfort animal and a service animal. The Americans with Disabilities Act (“ADA”) defines a “service animal” as:
Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
An assistance animal is defined by the U.S. Department of Housing and Urban Development (“HUD”) as follows:
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. For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 require assistance animals to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals.
The ADA definition of service animal excludes assistance animals. However, housing providers have an obligation to make a “reasonable accommodation” for both service animals and assistance animals under the ADA, the Fair Housing Act (“FHAct”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”).

REASONABLE ACCOMODATION

Associations that forbid, restrict or place conditions related to pets or animals within their governing documents are encouraged to develop a process to handle reasonable accommodation requests from residents that are seeking to possess a service animal and/or assistance animal(s). Once an Association receives a reasonable accommodation request from a resident, the Board of Directors should apply the ADA service animal test first.
SERVICE ANIMAL TEST (ADA)
An Association may only ask the resident seeking the reasonable accommodation if the animal is a service animal that is required because of a disability, and, if so, what work or tasks the animal has been trained to perform. If the animal meets the test for “service animal,” then the animal must be permitted to accompany the individual with the disability to all areas of the unit, common areas and facilities, and the property to which persons are normally allowed to go, unless 1) the animal is out of control and its handler does not take effective action to control it; 2) the animal is not housebroken; or 3) the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices or procedures.
If the animal does not meet the ADA service animal test, then the Association must evaluate the reasonable accommodation request with the guidance of the FHAct and Section 504 as it pertains to assistance animals.

ASSISTANCE ANIMAL TEST (FHAct and Section 504)

In evaluating a reasonable accommodation request under the FHAct and Section 504, as it relates to an assistance animal, the Association must consider the following:

  1. Does the person seeking to use and live with the animal have a disability (i.e., a physical or mental impairment that substantially limits one or more major life activities?
  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 the person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of the person’s existing disability?

If the answer to 1 or 2, above, is “no”, then the Association can deny the reasonable accommodation. However, when the answers to 1 and 2, above, are “yes”, the FHAct and Section 504 require the Association to permit the person to live with and use an assistance animal in all areas of the premises where a person is normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the Association’s services. The Association may also deny the reasonable accommodation request if: 1) The specific animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or 2) The specific animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. A determination that the animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individual assessment that relies on objective evidence about the animal’s conduct. It cannot be based on speculation or fear about the types of harm or damage the animal may cause, nor can it be based on evidence related to harm or damage caused by other animals.
The Association may not deny a reasonable accommodation request because it is uncertain whether the person seeking accommodation has a disability for which he or she would need an assistance animal. The Association may ask individuals who have disabilities that are not readily apparent or known to the Association to submit reliable documentation of a disability and/or disability-related need for the assistance animal. This may include documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. The Association may not ask the resident to provide documentation showing the disability or need for the assistance animal if the disability or need is readily apparent or already known to the Association.
Associations should be aware that: 1) breed, size and weight limitations may not be applied to assistance animals; and 2) conditions and restrictions within the governing documents that are applied to pets may not be applied to assistance animals.
Additionally, a request for reasonable accommodation may not be unreasonably denied or conditioned on the payment of a fee or deposit or other terms and conditions applied to applicants or residents with pets, and a response may not be unreasonably delayed.

CONCLUSION

With the increase in popularity of individuals utilizing service and/or assistance animals, there is a very real possibility that your Association will need to handle a reasonable accommodation request at some point in the not-too-distant future, if it hasn’t already. An Association has a responsibility to know the applicable laws and comply with each of them. If they don’t, there could be significant ramifications for you and your Association. The ADA, FHAct, and Section 504 contain laws that touch on sensitive but important issues that need to be handled tactfully and appropriately. Individual homeowners should be assured that their Association knows how to effectively handle a reasonable accommodation request that protects not only the individual seeking the reasonable accommodation, but also protects the other residents within the community and affords all residents an equal opportunity to use and enjoy the property.

RESOURCES

John Trasvina, Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, U.S. Department of Housing and Urban Development FHEO Notice: FHEO-2013-01, dated April 25, 2013.

By Molly E. Mueller