Your homeowner’s association may have a strict pet policy, but you may be treading on some thin ice if a homeowner refuses to comply. Maybe it’s “no pets under any circumstance” or “no dogs over 50 pounds” or bans certain breeds of dogs or limits the total number of pets allowed in each unit. How does your HOA board navigate the situation when an owner requests to have a dog or some other type of animal? Or even worse, claims the animal is needed for emotional support. So here is the rub— how do you legally determine who’s disabled AND “Who is pulling your leg to keep an outlawed pet?”
On December 2, 2020, the U.S. Department of Transportation published its long-awaited final rule on “Traveling by Air with Service Animals,” available here, which now defines a service animal as a “dog,” allows emotional service animals to be treated as pets, and regulates the documentation, number, placement in the cabin, and harnessing of service animals.
The humane society has a good article about the 2017 Fair Housing Act, which addresses this complex issue.
In assessing the situation, the board should always follow the guidelines set by the U.S. Department of Housing and Urban Development (HUD) and take each request seriously. Once your procedure is in place, follow those steps every time, with every accommodation request. Have a clearly defined “comfort animal” rule in place.
What is Comfort Animal?
There’s no standard definition of a comfort animal, and many people have different names for animals that aid in the medical treatment of humans. Whatever their name, their purpose is simple: to improve mental or physical health.
You’re allowed to ask for some information to assess the request for reasonable accommodation. Different levels of assistance animals define what information is necessary and how the board should respond. Once the HOA manager or the board receives an accommodation request, the best course of action is to grant temporary approval while you investigate.
Levels of Service Animals:
- Service Animal Dogs – possibly miniature horse, special training is required and protected under ADA and FHA guidelines and may not be restricted, a request for disability-related need is allowed if the disability is not apparent, a statement that the animal is trained to assist from a health care provider should be provided.
- Assistance/Therapy Animal – dog or other animals, usually some training is necessary. Reasonable accommodation can be requested; a request for disability-related needs is allowed if the disability is not apparent. This type of animal provides physiological or psychological benefit to the individual, a health care provider can provide a statement.
- Emotional Support Animal – dog or other animals, no training is required. Reasonable accommodation can be requested; request for disability-related needs is allowed if the disability is not apparent. Helps individuals with depression or anxiety.
The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. That means a physical or mental impairment that’s serious enough to substantially affect central importance activities to daily life, even if it isn’t obvious or apparent. The disability or reason for the request may not be apparent to the casual observer, and clarification up to a certain point is allowed.
If the disability is not visibly apparent, it is reasonable to request verification from a health care provider. If a statement or letter is received from a health care provider, no further investigation is required. Due to HIPAA laws, the individual is not required, nor should they be asked to provide specific information about their disability. If information about the specific disability is revealed to the HOA board, this information should never be shared outside of the board.
What Service Animal Documentation is Needed?
You might receive documentation that the animal is a service animal and trained to provide assistance to the resident. You could receive a statement from a health care provider that states that the individual has a disability and needs an assistance animal. A letter from a health care professional stating that the resident requires an emotional support animal is provided. Any of these are all that the board needs to approve a request for reasonable accommodation to any pet policy that may exist.
You will likely have other residents ask why a resident can have a dog, but the rules and regulations may state otherwise. You can only respond that a request for reasonable accommodation was granted; the other residents do not have the right to know the specifics, again because of health care privacy laws.
However, the Association should document cases of damage due to said animals, including elimination, property, and landscape damage, the Association, with proof, may charge the resident for repairs. If the animal has acted threateningly toward other residents, the law does not require that you allow a dangerous animal to live in your homeowner’s association. In fact, your local government has enforceable regulations on dangerous animals that supersede your rules and are enforceable by a local dog catcher or code enforcement officer.
Is It Worth Legally Fighting Service Animals in your Association to Uphold Your Rules?
Despite its strong pet rules governing pet number and size limits, your association may have a hard battle enforcing these limitations. Most Associations decide to settle cases because it is not worth the money to fight the claim and have to pass a special assessment to cover legal fees over dogs. Allow the homeowner to keep the pets, with a signed agreement about how they will be maintained. Stating that once they passed away, more pets to replace the lost ones is prohibited. Oftentimes it is more a business than a legal decision.
If you’ll just have to settle and allow owners to keep their pets, why fight over the issue at all? Because there’s a principle at stake: You can’t selectively enforce your rules. If you do, you’ll be forever explaining to owners why you favor some over others.
Rinaldo Acri, CEO of Acri Community Realty, has this to say about How to Handle Service Animals in a Homeowners Association “You cannot selectively enforce covenants, as that is a slippery slope to navigate as well.” Suppose you can get enough substantiation that the person’s claim of disability is remotely valid the next time you try to enforce the rule. In that case, you can say that you approved the animal because it was reasonable to believe that the person needed an emotional support animal. The association didn’t want to spend the association’s resources on a legal battle.”
See a legal case below concerning the number of Pets permitted by the Association’s Rules that made it to the Supreme Court. Judge Friedman ruled in favor of the homeowner.
Judge Friedman’s analysis also is instructive:
Despite the allegation of nuisance in the Complaint, the stated basis of the daily fines was that [Appellant] had three cats when he was only allowed two[,] and [we] concluded that the extra new cat did technically violate the [By-Laws]. However, we also concluded that the essentially unlimited daily fines represent an abuse of discretion and an unwarranted exercise of power by the Board. READ MORE OF THIS RULING.
In conclusion, your property manager can help the HOA board put a procedure in place for reviewing these requests. It would also be prudent to have those procedures reviewed by an attorney who specializes in HOA Law. Being pro-active instead of re-active is always the best position to be in.