Federal laws can be sticky when it comes to HOA fair housing. Although the Federal Fair Housing Act was significantly revamped in 1998, there are still a surprising number of board members and managers who don’t have a full understanding of how the FFHA applies to them. One area of particular concern in any HOA is service animals. How do you make sense of the different laws and what your responsibilities are?
When Pets — and Laws — Are Different Animals
Part of the confusion with service animals may stem from the fact that there are different federal laws that address the issue in very different contexts. On one hand, you have the Americans with Disabilities Act, or ADA. On the other hand, you have the FFHA or Federal Fair Housing Act. When you’re running an HOA, it’s pretty important to know which is which and how they affect your job.
The ADA
First off, the ADA applies to places of public accommodation, such as businesses, public facilities or government property. The ADA provides that disabled persons are entitled to bring a service animal into a place of public accommodation. Under this law, a service animal is specifically defined as a dog that is trained to perform work or tasks for the benefit of a disabled person. It does not include any animal other than a dog (with the possible exception of a miniature horse). It also excludes any animal that only provides comfort, companionship or emotional support to someone with a disability. So if you’re talking about the ADA, emotional support animals aren’t legally protected.
It is very important to note that the ADA does not apply to private property. It has no bearing on a housing provider’s obligations under the Federal Fair Housing Act, or FFHA. Similarly, any law that deals with animals in airline or other types of public transportation cannot be applied to the context of housing. That brings us to laws that do apply to private housing: the FFHA.
The FFHA
Under the FFHA, an assistance animal is an assistance animal, no matter what kind of assistance they provide. The FFHA does not distinguish between an animal that is specially trained to assist someone with a physical disability (such as a seeing eye dog) and an animal that provides assistance or support (including emotional) to someone with a mental or emotional disability. Any animal that alleviates the effects of any kind of disability is treated equally under the FFHA. There is no requirement that an animal be specially trained or possess any special skills. Any animal can be deemed a service or support animal under the FFHA, so long as it assists the person in some way with his or her disability.
The Department of Housing and Urban Development (HUD), which is the federal agency that enforces the FFHA, also has a say. HUD has determined that granting an accommodation for a service or support animal can almost never be deemed an unreasonable burden on an association or other housing provider. Unless the animal is dangerous or otherwise poses a serious threat or nuisance to the community, you are legally obligated to allow it.
HOA Service Animals and Fair Housing Abuse
In your CC&R’s, it may be easiest to refer to any such animal as a service, support or assistance animal, period. Due to HUD enforcement, making distinctions between animals that help with physical disabilities versus mental or emotional disabilities can get pretty (excuse the pun) hairy.
Although there is no difference under the FFHA between a traditional service animal and an emotional support animal (“ESA”), public perception is quite different. Maybe this is because, by nature, there is a lot of subjectivity involved in determining an emotional or mental disability. For good or bad, this makes it easier for someone to claim mental or emotional disability without a lot of concrete proof, and harder for a housing provider challenge their claim.
Sadly, there are a growing number of people who falsely claim to have a disability in order to keep a pet that is otherwise not permitted in your HOA. In turn, this gives a bad name to those who are legitimately disabled and do need such an animal. HUD’s position for many years has been that it would rather see 1,000 people abuse the system and get away with it, than to have even one person who truly needs an accommodation be wrongly denied. Perhaps this is a perspective your HOA should keep in mind when writing policies regarding assistance animals.
What’s a Reasonable Accommodation?
Requests for reasonable accommodations should be handled on a case-by-case basis, with the presumption that the request is legitimate (i.e. innocent until proven guilty). Associations that approach these requests as if everyone is faking it are likely to get themselves in hot water. Even rules that call out the fakers can be problematic, as they may imply a biased belief that requests for such accommodations are illegitimate. This might convey a negative attitude toward disabled persons that could, in and of itself, be deemed discriminatory.
To ensure even and appropriate treatment is given to every resident, it’s recommended that all associations work with their attorneys to adopt a standard policy. This policy dictates how they will process and evaluate each request for reasonable accommodations of any kind, including those for assistance animals.
Associations with pet restrictions that could result in requests for reasonable accommodation should have a separate set of rules that apply to assistance animals. For example, since these animals are not classified as pets, they may not be subject to certain “pet” rules such as extra fees or deposits. Make sure your rules are written with an eye to those differences.
Avoiding Discrimination Charges
Many discrimination charges over service animals have been made by HUD in the past few years. A lot of the trouble stems from the documentation an HOA asks for. For example, they may ask for written proof of disability, when the disability should be obvious. An HOA might also request medical information that goes beyond permissible inquiry, or ask for more documents when sufficient proof has already been given. Be sure that the documentation you’re asking for is appropriate and not overreaching.
Weaving your way through HOA fair housing regulations can be complicated and expensive. To save money and hassle, your HOA can mitigate the risks by working with a knowledgeable attorney who’s familiar with fair housing and HOA laws.
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Help
Great article, Phaedra!
Great information on a huge problem. We were involved in a case where someone was claiming their 80 lb. dog was an emotional support animal and therefore wasn’t subject to the 20 lb. rule in a small condo HOA. We basically have been told (by Utah Housing people) to not ask for any proof or documentation if we don’t want to be sued. We (our client) paid about $4k in legal fees and $1k in a settlement to the “harmed” individual. My advice is the second someone claims a service or ESA to just let it go.
This is a very helpful article. Thank you.
We have guests who come with animals when they visit in our condo complex. When they are here, can we ask them for documents that show the animal is a service animal?
To answer the question, I would first want to know if the condo has portions of the property that are open to the general public. If so and they are a place of public accommodation, then under the ADA they can ask for documentation that an animal qualifies as a service animal as defined under that Act. If the Association does not have areas open to the general public and consists solely of private property, then the ADA does not apply. Unless there is an applicable specific state law that says otherwise, associations are generally not required to make accommodations for guests or visitors or other non-residents under the Fair Housing Act. So if the association prohibits pets generally or only allows certain types of pets or otherwise limits the animals based on size, number, etc., visiting animals would be subject to the same restrictions, and no exceptions would be made for them. If pets or animals are generally allowed, then there would be no need to ask for documentation regarding visiting animals. If this association is allowing visiting animals that violate whatever pet or animal rules the association has in place, then it is really a matter of enforcement, and they should consult with their attorney on how to enforce these rules against visitors and/or amend their rules if appropriate. The only caveat I would give, though, is that the board should be cautious of enacting rules or changing their enforcement policies in response to any particular guests that are known to be disabled and should definitely avoid any selective enforcement of neutral rules against persons that are known to be disabled. This could be seen as discriminating against an owner on the basis that he or she is associated with a disabled person and could subject the association to claims or other enforcement action on that basis.