Our Firm recently provided information on the ability of a condominium or homeowner association to adopt rules restricting pet breeds, specifically as to dogs (http://jacksonlawgroup.com/blog/condominium-and-homeowner-association-law/pet-breed-restrictions-in-condominium-and-homeowner-associations-are-generally-enforceable/). However, if the association is provided with a request for a reasonable accommodation to allow a service or assistance animal that would violate the breed restriction rule, the association may have to allow the animal, regardless of the breed.
The Americans with Disabilities Act (“ADA”) prohibits discrimination by private entities such as hotels, motels, inns, and other “places of public accommodation.” Title III of the ADA also requires a public accommodation to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. Depending upon the nature of the community at issue (specifically, the nature of rentals in the community and whether the association operates a rental program), it may or may not be subject to the provisions of the ADA. Regardless, recent amendments to the ADA have limited the definition of “service animal” to a dog that is individually trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. If an owner or tenant requests a reasonable accommodation for an animal that does not meet the criteria of a “service animal”, the provisions of the ADA will not be applicable, however the Fair Housing Act (“FHA”) may apply.
Under the FHA, a housing provider cannot discriminate in the sale, rental or terms of housing because of a handicap of a buyer or renter. Discrimination on the basis of a handicap includes a refusal to make a “reasonable accommodation” in rules, policies and practices or services when such may be necessary to afford the disabled person equal opportunity to use and enjoy the dwelling. Condominium and homeowner associations in a majority of instances are considered to be a housing provider and thus subject to the FHA.
Unlike the ADA, the FHA does not expressly define “service animal.” However, the FHA has found that “assistance animals” other than dogs, including those that provide emotional support, have been recognized as necessary for which accommodations are reasonable in order to treat a disability. Additionally, it is important to note that the FHA has determined that a service animal is not a pet because it works, preforms tasks, and provides assistance to the person with a disability. The FHA has further stated that breed, size, and weight limitations may not be applied to an assistance animal.
When both ADA and FHA laws apply, housing providers are to comply with the broader FHA standards. Accordingly, although an animal may not constitute a “service animal” under the ADA, the Association may nevertheless have to grant an exception if the animal is an “assistance animal” under the FHA. So long as the owner or tenant provides the proper documentation of their need for the service or assistance animal, the association cannot refuse to allow the animal regardless of the association governing rules. This specifically includes the prohibition of denying the request for a service or support animal that may otherwise be a restricted breed pursuant to the Association’s restrictions or rules. However, if an animal is found to be disruptive and a danger to the community, or otherwise in violation of the covenants and restrictions (such as excessive barking constituting a nuisance), there are grounds for the association to seek to have the animal removed.
Civil penalties for violating the ADA can be up to $55,000 for the first offense and up to $110,000 for subsequent offenses. Additionally, violating the FHA can subject the association to civil penalties of up to $50,000 for the first offense and $100,000 for any ensuing violations. Moreover, community associations found to be in violation of the FHA have been required to make payment of damages to the requesting owner individually and required to attend fair housing training, in addition to being required to implement a new reasonable accommodation policy. Associations are thus strongly encouraged to seek counsel from an experienced community association attorney when faced with a reasonable accommodation request for a service or emotional support animal.