Dogs on Call: Waiving Pet Rules to Comply with the Fair Housing Act 

Many community associations have some type of covenant restricting the number and size of dogs or other animals that may be kept in the community. Some governing documents even prohibit certain types of animals or breeds of dogs. In the event a disabled resident (i.e., an owner or occupant) requests an accommodation from the association for his or her service or emotional- support animal, the association may be required to waive its pet rules to ensure compliance with the federal Fair Housing Act (“FHA”). Failing to recognize the importance of compliance with this law could result in costly legal trouble for the association.

The FHA prohibits community associations and other housing providers from discriminating against residents “because of their disability or the disability of anyone associated with them and from treating persons with disabilities less favorably than others” who are not disabled. Community associations are required to make reasonable accommodations to ensure a disabled person has an equal opportunity to enjoy either their unit or home, as well as the common areas.

When a request for a service or emotional-support animal is received, the association should not ignore this request. Instead, it should take immediate action to appropriately: (1) investigate the circumstances related to the request; and (2) determine whether the request is reasonable, by weighing the requesting individual’s needs against the association’s best interests.

Step 1: Investigate the Circumstances Related to the Request

In the best case scenario, the association’s job of determining the reasonableness of a resident’s pet accommodation is easy, because the connection between the disability and the request is apparent. For example, a service dog might be necessary to alert a hearing impaired owner to the sound of a fire alarm or doorbell. But what should an association do if the disability is non-visible?

The FHA defines a person with a disability as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” A physical or mental impairment includes, but is not limited to, hearing, mobility and visual impairments, chronic alcoholism, drug addiction (excluding an addiction caused by current illegal use of a controlled substance), chronic mental illness, AIDS, AIDS Related Complex, mental retardation, autism, cancer, heart disease, and diabetes that substantially limits one or more major life activities. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.

If the disability is non-visible, or if the connection between the disability and the request is not apparent, the Board should request certain supporting documentation from the resident. To illustrate, if the resident suffers from heart disease or has cancer, or some other non-visible disability, the association is entitled to request documentation from a licensed physician, specializing in a practice area devoted to the particular disability, that:

Verifies the condition alleged to limit one or more major life activities; Specifies the needed accommodation; and

Clarifies why the disability at issue requires the requested accommodation.

Step 2: Determine Whether the Request is Reasonable

After verifying the resident’s disability and need for a pet accommodation, the association should determine the reasonableness of the request by balancing the resident’s needs with the potential burden on the association. Currently, the U.S. Department of Housing and Urban Development’s (“HUD”) regulations favor allowing an assistance animal upon the association’s receipt of evidence substantiating the disability and need for the service or emotional support animal.

There are some circumstances, however, when the proposed accommodation might be considered unreasonable. Believe it or not, associations are now seeing more requests for non-traditional animals, such as miniature horses, ferrets and pot-bellied pigs. When attempting to determine the reasonableness of the request, the board should consider whether the request imposes an undue or administrative burden on the community. If so, the association may have a better foundation for denying the pet accommodation request. The association should be prepared, though, as the resident may file a complaint with HUD or a local action for damages.

The association should also consider its nuisance provision and whether the pet might present such an issue. While the courts do not clearly allow an association to deny a request if the pet is likely to pose a nuisance, if the resident’s condition prohibits the resident from cleaning up after the pet, or the pet is unusually loud (e.g., a barking dog), the association should still be able to enforce its nuisance restrictions.

In sum, all community associations should carefully handle pet accommodation requests. During the review period, it may be safest for the association to grant a temporary waiver to the requesting resident. Preparing an organized approach and process for reviewing such applications will surely go a long way in assisting associations with this important legal issue.