Many condominium and homeowner’s associations have pet restrictions, ranging from prohibiting all pets to allowing only pets of a certain size and/or breed. These restrictions are increasingly being challenged and associations are finding it harder to enforce them and subjecting themselves to liability if they attempt to enforce them.
Exceptions Mandated By Federal Law
There are Federal laws that require associations to make exceptions, in certain circumstances, to their pet restrictions. The two main laws relied upon are the Fair Housing Act and the Americans with Disabilities Act.
The Fair Housing Act
The Fair Housing Act requires associations to make reasonable accommodations in its rules when necessary to afford a person equal opportunity to use and enjoy their home. Failure to do so can result in a discrimination claim under that Act. To require an association to make accommodations:
- a person needs to show that he/she is handicapped, as defined in the Act
- that the association knew or should have known of the handicap
- that the association knew that an accommodation was needed to allow the person to enjoy their home
- that making the accommodation is reasonable
- and that the association refused.
An association may ask the person to provide proof of the handicap and that the person needs an assistance animal as a result, but associations need to be careful of the type of proof asked for. The need does not have to be a physical need, such as a visually impaired person needing a seeing eye dog. The need can be emotionally based, and those animals are commonly referred to as emotional support animals. Documentation from a doctor, psychiatrist, or mental health worker may be sufficient to require the association to make the accommodation.
Americans with Disabilities Act
In order for a person to claim an exception to an association’s pet restrictions under the Americans with Disabilities, that Act requires that the pet, which is called a service animal, be trained. However, the Fair Housing Act does not have that requirement and some courts and the U.S. Department of Housing and Urban Development have stated that emotional support animals do not have to be trained. As a result, most people trying to escape an association’s pet restrictions rely on the Fair Housing Act.
The typical animal for which owners and tenants seek exception to pet restrictions are dogs, but the Fair Housing Act does not limit the type of animal which qualifies as an assistance animal or emotional support animal.
Associations need to be more careful when enforcing their pet restrictions, especially when someone is asking the association to allow his or her animal based on physical or mental disabilities. The number of persons claiming the need for these types of animals is growing and many associations believe that the laws are being abused. However, refusal of an association to properly handle a person’s request to have an assistance animal, emotional support animal, or service animal, or to make accommodations to allow the animal when someone meets the tests under law, can expose an association to financial liability.
Photo Courtesy of mjhagen on Flickr