• From Poodles to Pot-bellied Pigs: Assistance Animals and the Fair Housing Act for Community Associations
  • December 22, 2016 | Author: Daniel M. Costello
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • Community Associations Update

    With a ruff-ruff here, and an oink-oink there, community associations increasingly face requests to accommodate their residents who suffer from a disability by allowing assistance animals. The federal Fair Housing Act (FHA) requires community associations to make reasonable accommodations to allow disabled persons equal use and enjoyment of their homes, but navigating such accommodations can be challenging for community association boards and managers.

    What is a Reasonable Accommodation?

    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 equal use and enjoyment of a dwelling, including public and common use space. A reasonable accommodation should not place the disabled person into a better position than those without the accommodation, but should instead afford the disabled person equal opportunity to use and enjoy the dwelling as would a person without the disability.

    To receive an accommodation, the disabled person must first make a request for the accommodation to the association. While it is not a requirement that the request be in writing, we recommend that the association request that the owner put the request in writing to keep a record of the request and to better understand the request. For example, an owner may request to have a dog to help with anxiety when the association’s covenants prohibit dogs. The disabled person should not bring the assistance animal onto the association’s property without first requesting and receiving the accommodation. Otherwise, if the association prohibits the type of animal or the animal violates any other covenants (e.g., size and weight restriction), the presence of the animal could result in covenant enforcement actions.

    The requested accommodation, here the assistance animal, must have an identifiable relationship, or nexus, to the individual’s disability. The accommodation requested must be reasonable. If the accommodation would pose an undue financial or administrative burden on the community association, the association can deny the request. The determination as to whether the request is reasonable must be made on a case-by-case basis, and the community association may consider the cost of the requested accommodation, the financial resources of the community association, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s needs.

    What Documentation Can the Association Request?

    Community associations can request documentation from the disabled person’s physician, psychiatrist, social worker, or other mental health professional verifying that the animal provides support that alleviates at least one of the person’s disability symptoms or the effects of the existing disability.

    The community association may not inquire about the nature and severity of an individual’s disability; however, requests for disability-related information are permitted to verify: 1) that the person meets the definition of someone with a disability, 2) that there is a need for an accommodation, and 3) that there is a relationship, or nexus, between the disability and the requested accommodation.

    A verification letter stating that the assistance animal is helpful or would be nice is insufficient. The letter must establish how the assistance animal will alleviate the symptoms or effects of the disability. For example, a letter from a mental health professional stating that the animal is necessary to alleviate the person’s anxiety and assists the person to sleep at night is sufficient.

    Community associations should ask their attorney to assist with the request for documentation and to assist in reviewing the documentation to determine if it meets the required threshold under the FHA.