Editor’s note: this week’s column was researched and written by Mr. Hunter’s associate attorney, Michael Tarwater Jr.
We are often asked about pet restrictions in the context of homeowners’ associations (HOAs) and their enforceability with respect to assistance animals for persons with disabilities.
An HOA’s governing documents often restrict the type, size, and quantity of pets allowed. Like all good rules, there are exceptions.
In this case, they come in the form of the federal Fair Housing Act. The act, which prohibits discrimination based on race, color, religion, national origin, gender, disability, or familial status in the sale, rental, and financing of housing, mandates that HOAs provide reasonable accommodations to homeowners with disabilities.
The act should not be confused with the American with Disabilities Act (ADA). The ADA governs only public spaces, including public housing. It is not applicable to HOAs in most cases, since most HOA-owned common areas are not places of “public accommodation.”
According to the Fair Housing Act, assistance animals (also known as service animals) are not pets, but are “work animals” that help owners in a myriad of ways. Assistance animals do not need to be trained or certified to perform a specific task. The work that an assistance animal may provide runs from a seeing-eye dog to dogs that alert owners or others that a diabetic coma or seizure is imminent.
There are also assistance animals that provide emotional support, whether to a war veteran suffering from post-traumatic stress disorder or to someone who suffers from severe anxiety. Assistance animals have also been known to help children with autism and their families.
If a homeowner has an assistance animal in violation of the restrictions it may result in the HOA sending a violation letter.
What the board does from here on out is important. If the homeowner claims that the pet is an assistance animal, then all the board can do is ask if the homeowner has a disability and if so, request a doctor’s note with respect to the assistance animal.
If the disability is obvious (i.e., blindness), the board may NOT ask the owner to provide a note from the owner’s doctor that the assistance animal is indeed a medical necessity for accommodation of the owner’s disability.
If the disability is not obvious, the board may ask for a note from a health care professional confirming both the existence of a disability and the specific need for the assistance animal.
If the homeowner can answer yes to the question as to whether he has a disability and can provide documentation on the benefit and medical necessity of the service animal, then the board must allow the animal as a reasonable accommodation.
The board may not ask the homeowner what the disability is or why the assistance animal helps the owner.
Further, if the board repeatedly asks for more and more information, even after being presented with a doctor’s note, they could be in violation of the act.
Asking for too much information, asking for information that is too detailed (including what the disability is), and not granting reasonable accommodations may open the association up to litigation.