Condominium associations often implement rules which prohibit pets on the condominium property or limit the number, size or breed of pets permitted on the property. What many condo associations may not realize is that as they pertain to a disabled person, enforcement of these rules may violate the association’s duties under the federal Fair Housing Act (“FHA”) and Louisiana’s Equal Housing Opportunity Act (a similar state statute), which prohibit discrimination against any person in the “terms, conditions, or privileges” of the sale or rental of a dwelling or in the provision of “services or facilities” in connection with a dwelling because of a handicap of the buyer, renter, resident, prospective resident or any person associated with the buyer or renter of the dwelling.

Discrimination under the FHA includes refusing to make “reasonable accommodations” in rules, policies, practices, or services when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. This article is a step-by-step guide for Condo Associations on how to manage requests for reasonable accommodations, specifically discussing exceptions to condominium pet regulations to allow assistance animals to reside on the condominium property.

Where to Begin

As a starting point, it is important for the association to know the elements of a claim of discrimination under the FHA based on refusal to provide a reasonable accommodation. The plaintiff must prove that (1) he or she suffers from a handicap as defined by the FHA; (2) the defendant knew or reasonably should have known of the handicap; (3) the plaintiff requested a particular accommodation that was both “reasonable” and “necessary” to permit an equal opportunity to use and enjoy the housing in question; and (4) the defendant refused to make the requested accommodation. Notably, an accommodation is not “reasonable,” and thus not required by the FHA, if it imposes undue financial or administrative burdens or requires fundamental alteration of the nature of the housing.

Respond to reasonable accommodation requests timely and uniformly.

When presented with a request for a reasonable accommodation, the association should address the request as promptly as possible. Lengthy delays may be considered a constructive denial of the request.

The association should also establish consistent guidelines for evaluating reasonable accommodation requests. For example, a single reasonable accommodation request form should be made available to all residents, and the association’s board should have a set of guidelines to help them evaluate each request. This will help the board make more reasoned and uniform decisions. In addition, establishing a uniform policy will help proactively address residents’ concerns about providing exceptions to the condominium’s pet regulations.

If necessary, request additional information.

In response to a request for a reasonable accommodation, the association may request information that is necessary to verify the disability, evaluate the requested accommodation, and determine the relationship between the disability and the requested accommodation. The association should never request overly invasive information, but it is generally permitted to request the following:

  • Documentary support for the disability, possibly including a determination of whether the disability is temporary or permanent for purposes of determining how long the accommodation must be provided
  • A detailed description of the accommodation being requested
  • Information establishing how the requested accommodation will help the disabled individual overcome his disability in order to be better able to use and enjoy the housing in question

The association should implement policies and procedures to ensure that medical information submitted in connection with reasonable accommodation requests is protected from disclosure to third parties.

Evaluate the disability documentation.

In order to qualify for a reasonable accommodation under the FHA, an individual must be able to show that he or she has a “disability” or “handicap,” defined by the FHA as any of the following:

  • A physical or mental impairment which substantially limits one or more of a person’s major life activities (such as caring for oneself or working)
  • A record of having such an impairment
  • Being regarded by others as having such an impairment, even if the impairment does not actually exist

If a disability is obvious, for example, due to a wheelchair or other implement, then the association should not seek additional information about the disability unless it is necessary to determine how a requested accommodation should be implemented. If a disability is not readily apparent, the association can request that the individual’s claim of disability be verified by a reliable third party, such as a mental health or medical professional. However, because varying types of proof of disability are acceptable, disability documentation must be reviewed on a case-by-case basis. It is also important to remember that mental impairments, including emotional illness, must be given the same consideration as physical impairments.

Evaluate the requested accommodation and its relationship to the disability.

Once the association determines that a disability exists, the disabled party must also show that the requested accommodation is reasonable and necessary to accommodate the disability in order to allow him to use and enjoy the housing in question. For example, if a disabled individual is requesting an exception to the condominium’s pet regulations, he must show that the animal helps him overcome his disability in order to allow him to live more comfortably in the condominium. This is obvious, for example, in the case of guide dogs for the blind, but animals may also be used to accommodate less noticeable disabilities such as anxiety or depression.

Guide dogs are examples of “service animals,” which must be individually trained to perform tasks that accommodate disabilities. In contrast, “emotional support animals,” may alleviate symptoms of a disability by their very nature without training. Both service animals and emotional support animals can be considered reasonable accommodations under the FHA, and there is no “bright line” rule for determining whether an animal should be considered a reasonable accommodation.

Some courts still require special training or certifications to establish that a pet is necessary to accommodate a disability while other courts find that the calming, social nature of a pet is enough. As a result, the association must review each pet accommodation request on a case-by-case basis, but it should never refuse to provide an accommodation simply because the pet is not trained or certified. A “prescription” for the pet from a mental health professional or counselor should be sufficient to establish that the pet is necessary to accommodate the disability.

Provide the accommodation without additional “strings.”

The association should never charge a pet deposit in exchange for accommodating a service or emotional support animal. Assistance animals are not considered “pets;” they are considered implements to accommodate disabilities, like wheelchairs. For the same reason, assistance animals are not required to comply with size and breed restrictions. However, if the animal is dangerous or out of control, then an accommodation is probably not “reasonable,” and therefore not required by the FHA. Notably, the association can hold an FHA-accommodated pet owner responsible for any damage caused by the assistance animal if the association already has a policy in place that requires residents to pay for damages that they cause.

If in doubt, consult an attorney.

The circumstances surrounding each reasonable accommodation request will vary. If the association is unsure about whether to provide an accommodation, it should consult legal counsel about the facts of the specific case. If a resident makes a discrimination claim against the association, the association should consider retaining an attorney and notifying its insurer.

Filed under: Condominiums, Industry News
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