We’ve written many times about the Federal Fair Housing Act and its applicability to community associations. One of the more frequent questions that we have to deal with is residents requesting permission to keep their assistance animals.
In Colorado and under the Federal Fair Housing Act, it is unlawful to refuse to make reasonable accommodations in rules, policies, practices or services when the accommodation may be necessary to afford a disabled person an equal opportunity to use and enjoy a dwelling unit, including public and common areas. This applies as well to enforcement of restrictive covenants
A community association can be required to incur reasonable costs to accommodate a disabled person, so long as the accommodations do not pose an undue hardship or substantial burden. To show that the requested accommodation may be necessary, there must be an identifiable relationship between the requested accommodation and the disability. While the types of accommodations are virtually unlimited, one of the more common requests involves relaxation of a “no pets” policy.
Animals used by persons with disabilities are commonly referred to as assistance animals, service animals, companion animals or support animals. These may include animals that provide emotional support for persons with mental disabilities or whose disabilities result in chronic pain. Some courts have provided a fairly liberal interpretation of assistance animals as reasonable accommodations. In one case, in refuting the housing provider’s contention that an assistance animal was nothing more than a house pet, the court held that service animals need only be (1) individually trained, and (2) work for the benefit of a disabled individual.
In an administrative law decision determined by the Department of Housing and Urban Development, it was determined that a disabled person’s cat provided pain therapy for symptoms of fibromyalgia and relieved emotional distress associated with pain from fibromyalgia, and therefore, the disabled person had made a prima facie showing of need for exemption from the no-pet rule and being allowed to keep his cat in his apartment. In another administrative law decision, it was determined that permitting a disabled person suffering from depression to keep her dog was a reasonable accommodation, even though the dog had no special training. The HUD decision determined that a dog provided comfort to the person in a way that interaction with other people did not.
However, the federal district court in Hawaii took a more restrictive approach with respect to the qualifications of service animals. Although it recognized that in certain circumstances, service animals may be necessary accommodations, the court stated “The term ‘service animal’ is not defined by the FHA or the accompanying regulations, but it is understood for purposes of the Americans with Disabilities Act of 1990 (“ADA”) to include any guide dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability . . . Plainly, most animals are not equipped to do work or perform tasks for the benefit of an individual with a disability. There must instead be something – evidence of individual training – to set the service animal apart from the ordinary pet.” In arriving at the determination that the dog was not a qualified service animal, the court noted:
Plaintiffs’ counsel suggested canines (as a species) posses the ability to give unconditional love, which simply makes people feel better. Although this may well be true, counsel’s reasoning permits no identifiable stopping point: every person with a handicap or illness that caused or brought about feelings of depression, anxiety or low self esteem would be entitled to the dog of their choice, without regard to individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for these animals. The test would devolve from ‘individually trained to do work or perform tasks’ to ‘of some comfort.’ The FHA – a sweeping enactment – is not quite so broad. Certainly, ‘some type of training is necessary to transform a pet into a service animal.’
Nevertheless, even in cases where the courts have held that an animal must have certain training or qualifications to be a service animal, there is a recognition that a minimal amount of training is sufficient, and even that training need not be specific to the particular disability.
As with any Fair Housing issue, it is important that the community association properly address the need for accommodation relating to the community’s no-pets policy or restriction. If your community has received an accommodation request, you should immediately contact your attorney to discuss the proper way to address the request. Failure to properly handle it can lead to serious consequences, including penalties, attorney fee awards, and sometimes, fair housing training for offending boards and management companies.