Our clients contact us frequently to ask what accommodation, if any, must be made for owners (or even tenants) who have service animals. Based on extensive research and multiple experiences with clients responding to discrimination complaints, the information we provide to our clients is as follows.
The FHA makes it unlawful to discriminate against any person in the provision of services or facilities in connection with his dwelling, because of a handicap of that person or any person associated with that person. 42 USC 3604(f)(2). Discrimination includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. 42 USC 3604(f)(3)(b); 24 CFR 100.204. A request for an exception to a condominium’s pet restriction for a service animal is considered a request for a reasonable accommodation.
To prevail on a claim that a reasonable accommodation was unlawfully denied, an owner would have to show that the owner (or a co-resident of the unit) is handicapped; that the association knew or should reasonably be expected to know of the handicap; that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; that the accommodation is reasonable; and that the association refused to make the requested accommodation.
An association is entitled to information that allows it to make a meaningful review and an informed decision on the request for reasonable accommodation. For example, an association could request a copy of a doctor’s note verifying that the owner is disabled and recommending the use of a service animal to treat the owner’s disability. Such information must be kept confidential and may not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request (i.e., sharing the information with the association’s attorney who is assisting the Board in reviewing the request for accommodation) or unless disclosure is required by law. An association cannot request copies of the disabled owner’s medical records or more detailed information about the nature of the disability.
Even if your association has a ban on pets or limits the number of pets allowed in a unit, the association cannot consider a service animal a “pet” and refuse to made a reasonable accommodation based on a no-pets or limited pets rule. The Washington State Human Rights Commission states that “Legally, a service animal is not a pet. You are required to modify your “no pets” policy to allow the use of a service animal by an individual with a disability. A “no pets” policy may be continued, but you must make an exception to your general rule for service animals.”
In short, if an owner provides information that he is handicapped and that a service dog is necessary to his use and enjoyment of his unit, the association should grant his request for a reasonable accommodation and allow the service animal to remain in the unit, even if the association has a no-pets policy or a limitation on the number of pets allowed per unit.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!
Our Condominium Certificate of Amendment (C of A) includes the following with no reference to there being an exception for service dogs:
“The owners of units may keep small pets, of a normal domesticated household type (such as cats, birds and fish in aquariums) in their units, provided, however, that the keeping of dogs within the Condominium is prohibited.”
Is this legal or do we need to change our C of A to include “no dogs are allowed with the exception of service dogs.”
Thank you for your consideration of the above.
Hello Frank,
Associations are required to allow service animals under the circumstances discussed above regardless of whether there is allowance for service animals in the governing documents. It probably isn’t worth the expense to the association to amend its documents to formalize a right (on the owners’ part) that already exists by law.
I hope that helps!
Our HOA requires the owner of a service animal to obtain certification from the county that the animal is indeed a service animal. Is this legal. May we ask for this certification?
Hi, Gail,
It’s difficult to answer your question without knowing more. Courts and governmental agencies (such as the FHA or Washington State Human Rights Commission) interpret the law differently in these situations. So while a court might interpret a statute as allowing an association to request documentation of a disability or an animals credentials, an agency dealing with a homeowner/tenant complaint might not.
The best thing for your association to do is consult with an attorney experienced in both community association law AND disability law in order to evaluate whether your HOA’s policy is enforceable and/or a good idea as a practical matter.
Good luck.
A resident produces a letter from a licensed physician, board certified to practice general psychiatry stating the resident who has a Signal (Hearing) Dog needs a second animal, a Psychiatric Service Animal to address the conditions related to PTSD. Can the association refuse the accommodation regardless of what the residents doctor’s recommend.
Hello Ken,
Without knowing more about the specific situation, I can’t answer your question, and as always associations dealing with these situations should consult with their attorney for legal advice. However, we just published one blog article about service dogs and have a follow-up article coming in a couple of days. The articles discuss a recent case out of Florida detailing what an association may and may not ask for when an owner makes a request for a reasonable accommodation.
If an owner provides documentation of a disability and can show the connection between their disability, and how the requested accommodation (service dog) can help address that disability, then I would say unless there are other circumstances that “change the equation,” an association that refuses to make the reasonable accommodation is risking an investigation that might find them in violation of the FHA.
Good luck.
How specific can an HOA be when asking for verification of disability. For example: need for an emotional support dog. Can they request specific diagnosis information from a doctor. (ie: depression, anxiety, alcoholism ).
I live in a co-op, that allows one dog. Recently a new member has moved in and brought in two dogs and all the members knew including the president. Years later the president is now trying to get rid of the +1 dogs.. should i be concerned about my 2 dogs that i have had at this association for more then 2 years?
Hello James,
Unfortunately there is no way for us to answer this question. I can say that, generally, most community associations have “no waiver” language in their documents somewhere. The idea being that the failure to enforce documents in the past is not a defense against the association enforcing the documents in the future.
If you are concerned, I would consult with a community association lawyer in your jurisdiction.
Michele – I’m not sure how your comment just showed up now 2+ years after you wrote it! Associations cannot request specific diagnosis information or medical records when dealing with a request for a reasonable accommodation. If the owner submits a note from a health care professional stating that their emotional support animal assists them with their disability, that is all that is required on their part. The accommodation must be made for that animal – which is legally not a “pet” under these circumstances – to be allowed in the community.
This does not mean that rules pertaining to the animal’s behavior cannot be enforced, but that is a separate issue.