By Ashley Nichols and Wes Wollenweber, CAI Rocky Mountain Chapter Editorial Committee
Alaska Airlines recently announced that as of January 11, 2021, it would officially ban Emotional Support Animals (ESAs) from its flights. The decision follows new US Department of Transportation (DOT) rules which gave airlines “control of the cabin” following “feedback from the airline industry and disability community regarding numerous instances of emotional support animal misbehavior which caused injuries, health hazards and damage to aircraft cabins.” The airline will continue, pursuant to the law, to allow accommodations for trained service dogs. This week, United, American, and Delta joined Alaska in the ban of ESAs on their flights.
While there is specific guidance for airlines on this topic based on the rules in place from the DOT, many of our boards often ask what they can do within the limit of the law and their Association’s governing documents when it comes to regulating ESAs in their communities. Especially now, in this time of pandemic, when anxiety and stress levels are higher than normal, and owners are certainly spending more time at home, perhaps in no-pet communities. The number of pet sales and rescues are up and people are turning to animals as a source of comfort and emotional support.
Take the following example: Community Manager advises the board that an owner in your upscale community has installed a chicken coop with a handful of chickens in their back yard. Your Association has a "no fowl" covenant. The nearby neighbors are aware of this and are not at all happy about the noise and prospect of farm-like atmosphere. Worse, the coop owners never brought their chickens to anyone's attention. When your Community Manager issues a warning letter, the coop owners are outraged, and write a letter that the chickens are emotional support animals and are helping their two children with their emotional disabilities that have been made worse by COVID-19 and having to participate in school online.
This, of course, raises a reasonable accommodation request under both the federal and state Fair Housing Acts. An accommodation is a request for an exception to a rule, policy, practice or service. Here, on behalf of their children, the coop owners are asking for an exception to the no-fowl covenant. With the various downsides of a pandemic, requests for emotional support animals (aka companion animal or comfort animal) are on the rise. Unlike the Americans with Disabilities Act, which only provides for service animals (and primarily service dogs), the Fair Housing Act allows for two types of Assistance Animals for individuals with disabilities who qualify for such animals: (1) service and (2) emotional support. Handling requests for emotional support animals properly is more important than ever.
So, can the Association simply reject the request for chickens as a reasonable accommodation based on the fact that it is a quiet suburban neighborhood with rules in place stating that the community does not allow fowl? The short answer is no. Under the pertinent Fair Housing legal authority, the Association must evaluate the request and engage in a dialogue with the coop owners about the request. What are the Association's rights?
The Association has the right to make three inquiries: First, whether the coop owners' children are individuals with a disability as defined by federal and state Fair Housing law; second, whether they truly need the chickens to help them with some particular aspect of their disability in a way that allows the children to enjoy their home in the same manner as an individual without a disability; and third, and final, whether the request is reasonable.
As to inquiry one, a person is an individual with a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities; has a record of a disability; or has been regarded as having a disability. Emotional Support (or Companion) Animals typically arise for individuals with a mental impairment, where the animal's bona fide purpose is to ameliorate (lessen) the impact the individual's disability has on daily life.
As to inquiry two and need, the coop owners must demonstrate a nexus (strong connection) between their children's disability and why they need chickens. The Association has a right to ask the owners to establish the connection. Why do they need chickens for comfort in this pristine neighborhood? Why won't a puppy work? The next big question is always, "what kind of information can we ask for?" Under the United States Department of Housing and Urban Development (HUD) and the United States Department of Justices' Joint Guidelines on Assistance Animals, and as with any reasonable accommodation request, the Association may ask for documentation and proof as to disability and need if they are not obvious. If someone asks for a service dog, such as a seeing-eye dog, and the person with the disability is clearly blind, then both disability and need are obvious and an Association may not request any further documentation. But here, not much is known about the children, other than they have some type of emotional-type disability. So, disability and the need for the chicken is not known. As such, the Association may ask for documentation concerning both.
But wait! Can't we deny this request as unreasonable, based on the third inquiry, before going through all this effort? After all, puppies provide all kinds of comfort. That is a common and valid question. Unlike in various areas of law where "reasonable" is defined to be what a judge tells you it is on the day you are in court, the federal Fair Housing regulations have a definitive definition: A request is reasonable if it is feasible or practical.
Looking at the request, an Association can and should evaluate need and reasonableness together. The Association does not have a right to know extensive details concerning the children's disabilities. However, they can inquire about what substantial limitations will be helped by having an emotional support animal and how. Further, in this context, the Association truly can ask why some other type of animal, which does not violate the no fowl rule, will not work. The basis for this question is the contention that chickens, as emotional support animals, are not feasible or practical in the community. The coop owners may challenge this, but the Association is certainly within its right to make the inquiry. Whether an accommodation is impractical or unfeasible, and could therefore be denied, must be based on objective criteria. If several residents will be up in arms, there is at least an argument that it is not reasonable. The board must gather the information to legitimately asked questions and seek to make a decision that is compliant with law based on the evaluation of need and reasonableness together.
Given that we all need a little extra emotional support at times, and especially in these trying times, when your community is faced with a request for a reasonable accommodation for a support animal in your no-pet community, make sure that you discuss your options with legal counsel. Having your Association’s attorney review the request, the Association’s governing documents, potential impact on the community, input from neighbors, etc. to help the Association determine whether a request is feasible or practical can help avoid missteps that could lead to legal liability for the Association.
Ashley Nichols is the principal and founder of Cornerstone Law Firm, P.C. She has been in the community association industry for thirteen years, providing associations with debt recovery solutions for their communities. Cornerstone Law Firm represents Colorado communities in all areas of common interest community law. You may find out more at www.yourcornerstoneteam.com.
Wes Wollenweber is a founding partner at Pearson Wollenweber Freedman, LLC in Lakewood, Colorado, where his law practice focuses on litigation and mediation of complex community association disputes.
