Associations are sometimes faced with a request by a resident for an exemption from a rule limiting or restricting animals to accommodate the resident’s disability.  The use of an animal to assist a person with a disability may involve issues under the American with Disabilities Act (ADA), the Federal Fair Housing Act (FHA), and state housing and discrimination laws.  This article focuses on the inquiries that an association may make, and the exemptions that apply for these types of animals under the ADA and FHA.

I.    Distinctions Between ADA and FHA.

The ADA prohibits, inter alia, discrimination by any person who owns, leases (or leases to), or operates a “place of public accommodation.”  A common interest development, such as a condominium, may be deemed a place of public accommodation and therefore subject to the ADA  if it is open to the general public or operates as a “place of lodging.”  The Federal Fair Housing Act (FHA) also applies to associations, and prohibits discrimination in housing on the basis of, among other things, disability.  One type of discrimination prohibited by the FHA includes a refusal to make a “reasonable accommodation” in rules, policies, practices or services when such accommodation may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

In responding to a request for an exemption from a pet rule or restriction, it is necessary to understand the distinction between a “service animal” under the ADA and an “assistance animal” under the FHA.  This is because the requirements relating to service animals are different from the requirements relating to assistance animals.     

A.    Consideration Under ADA Requirements.

Under the amended ADA regulations issued by the U.S. Department of Justice in 2010, a “service animal” is a dog that is individually trained to do work or perform tasks for a person with a disability.  The definition of “service animal includes only dogs and excludes emotional support animals.  It is also important to note that emotional support animals that do not qualify as service animals under the ADA may “nevertheless qualify as permitted reasonable accommodations for persons with disabilities” under the FHA.  Some state and local laws also define service animal more broadly than the ADA does.

Beware.  The scope of inquiry that can be made to determine whether an animal is a service animal under the ADA is much more limited than what can be asked about an assistance animal under the FHA.  When it is not obvious what service an animal provides, only limited inquiries may be made: (1) Is this a dog that is required because of a disability? and (2) What work or tasks has the dog been trained to perform?  Inquiry cannot be made about the nature or extent of a person’s disability; and documentation, such as proof the animal has been trained or certified, may not be required.  But, the two permissible inquiries may not be made when it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability.  Subject to limited exceptions, if the animal is a service animal, it may not be denied access to the ADA-covered facility.      

B.    FHA Inquiries.

An “assistance animal” under the FHA is more broadly defined than “service animal” under the ADA to include an animal, not limited to dogs, 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.  Assistance animals perform various disability-related functions, such as pulling a wheelchair, guiding individuals who are blind, or alerting individuals who are hard of hearing to sounds.  The homeowners association cannot dictate the type of animal that it will approve as an accommodation.

A request for a reasonable accommodation to possess an assistance animal in a dwelling should be evaluated using the general principles applicable to all reasonable accommodation requests.  According to a recent notice issued by the U.S. Department of Housing and Urban Development (“HUD”) clarifying the laws pertaining to such animals, upon receiving such a request, housing providers must consider the following:

  1. Does the person seeking to use and live with the animal have a disability; and
  2. Does the person making the request have a disability-related need for an assistance animal.

A request for a reasonable accommodation may not be denied because of uncertainty whether or not the person seeking the accommodation has a disability or disability-related need for an assistance animal.  Where the person’s disability is not readily apparent or known, the person may be asked to submit reliable documentation of a disability and their disability-related need for an assistance animal.  According to the recent HUD notice, the person may not be asked to provide access to medical records or medical providers.

Whether a person has a disability-related need for an assistance animal involves case-by-case assessment (i.e., based on the individual’s set of circumstances).  If the disability-related need for the assistance animal is not readily apparent or known, the person requesting the reasonable accommodation may be asked to provide documentation of the disability-related need for an assistance animal.  The example provided by HUD is that the person seeking an accommodation for an assistance animal that provides emotional support to provide documentation from a physician, 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.      

C.    Timing of Reasonable Accommodation.

Keep in mind when considering a request for a reasonable accommodation that the request may not be unreasonably denied and a response to the request may not be unreasonably delayed.

II.    Application of Both ADA and FHA.

Where the development is covered by both the ADA and FHA, the ADA service animal test should be applied first to avoid possible ADA violations.  If the animal does not meet the ADA service animal test, then the reasonable accommodation analysis under the FHA, as discussed above, should be applied.

III.    Summary.

Considering the pitfalls and uncertainties, and potential penalties involved with ADA and FHA issues, when faced with a request for an accommodation involving an animal (whether service, assistance, emotional support, etc.), a homeowners association should consult with legal counsel before evaluating the request, based upon the specific facts and circumstances.

ADDITIONAL RESOURCES:

U.S. Department of Housing and Urban Development, FHEO Notice FHEO-2013-01, issued April 25, 2013.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, ADA 2010 Revised Requirements: Service Animals.

U.S. Department of Justice, Civil Rights Division, and U.S. Department of Housing and Urban Development, Joint Statement on Reasonable Accommodations Under The Fair Housing Act, May 17, 2004.

42 U.S.C. §§ 3601 – 3619, 12181, et seq.

24 C.F.R. § 100.204.

28 C.F.R. parts 35 and 36.