by Jacqueline C. Marzan, Esq., Jay Steven Levine Law Group

Emotional Support DogIt is not uncommon for a community to prohibit pets or limit them by type, size and number. If a community does not allow pets at all, it would seem that the community should be free of resident pets.

However, the evolution of the definition of reasonable accommodations under the Fair Housing Act has evolved to the point of ignoring such restrictions should the conditions be right. A “reasonable accommodation” is a change, exception or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. Keep in mind that the Fair Housing Act applies to individuals, corporations, associations and others involved in the provision of housing and residential renting. This includes (but is not limited to) property owners (not owner occupied buildings with four or less dwellings), housing managers, homeowners’ and condominium associations, lenders, real estate agents and brokerage services.

Let’s look at an example:  no pets are allowed in a community by restrictive covenant. An owner in that community writes a handwritten note (keep in mind, the request does not need to be written, it can be an oral request) to the Board that the owner is severely depressed and needs the companionship of a large dog because the dog helps him or her to cope better. The dog is already in the unit. What should the Board do?

Keeping in mind the rationale that the disabled person should be afforded an equal opportunity to use and enjoy the dwelling, the first step is determining whether the request is indeed a request for a reasonable accommodation. This is difficult to do since the individual does not necessarily have to utter or write the words “reasonable accommodation” in order to have the request treated as such. In the case of the above example, a request has been made to allow an assistance animal to live in a no pet community.

A determination should be made as to whether the person has a “disability” pursuant to the Fair Housing Act. A disability can be a “physical or mental impairment” that substantially limits one or more major life activities. That is, the disability does not need to be visible to the naked eye. Care should be taken here to consult with counsel on what to ask for from the requesting owner (and/or the physician) and what is ultimately accepted.

Make certain inquiries as to the existence of the disability in connection with the accommodation request. What can the inquiry contain if the disability is not obvious?

A board may request the following:

  • A letter from the treating physician verifying the disability
  • A description by the physician of the needed accommodation
  • A description of the relationship between the disability and the need for the requested accommodation
  • Evidence that the physician rendering the opinion or letters is qualified to treat the disability

Requests for reasonable accommodations may appear simple in application; however, not all accommodation requests are reasonable in nature. For example, accommodation requests that are unduly burdensome or a financial burden need not be provided, although prior to making such a determination, associations should consult with legal counsel on a compromise position in order to avoid the owner’s filing of a fair housing complaint.

Has your Board received a request for a reasonable accommodation in reference to an animal living in your no pet community? How did you handle the request? What was the final outcome?

  1. Nicole says:

    This article isn’t entirely accurate. According to the ADA website: To determine if an animal is a service animal, a public entity or a private business may ask two questions:

    *Is this animal required because of a disability?
    *What work or task has this animal been trained to perform?
    These questions may not be asked if the need for the service animal is obvious (e.g., the dog is guiding an individual who is blind or is pulling a person’s wheelchair). A public entity or private business may not ask about the nature or extent of an individual’s disability or require documentation, such as proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest.

    So it seems although a potential or current tenant may disclose extensive information on their own accord, it is not legally permissible to require documentation from a medical professional that discloses any information pertaining to the individual’s disability.

  2. David Dweck says:

    Let us assume that the person making the request gets all the appropriate documentation from his/her doctor and in fact is under qualified treatment for a mental impairment. You have another resident who bought in the building and one of his/her building qualifiers was a no pet building due to her severe Asthma which is well documented. The bring of this Service Animal now brings issues that aggravates this resident’s Asthma. What should a Board do at this point and who (if any) has the higher priority as far as the Fair Housing Act?

    • Dan T says:

      David – this is a great point and has been brought up many times in associations – but I have yet to see this scenario work it’s way through the legal system. I don’t think the Board should put themselves in the middle of making this decision. If the board agrees to make a reasonable accommodation for the owner, then I would imagine it would be the responsibility of the asthmatic owner to make a complaint and then the lawyers get involved.

    • Kacie says:

      At that point, legally, the landlord must make every attempt to accommodate both parties to the best of their ability. A situation such as the one you describe would most likely be as simple as assigning them housing units as far apart from each other as possible, thereby isolating the chance of an asthma attack. As long as no one is being discriminated against, it’s very rarely an issue. Usually people who have medical conditions such as asthma have medication they carry with them. Are they going to get in a huff because someone who takes their pet on morning walks passes them? No (unless they’re a jerk). They’re going to take a puff of their medication as soon as they feel or predict their chest will tighten, and probably alter their route.

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