By K. Christian Webert
Some homeowners and condominium associations have restrictions on animals within their communities. Generally, these restrictions prohibit certain animals, limit the number and size of certain animals, and prohibit certain animals from certain areas in the community. Sometimes, a resident demands that the association make an exception to its rules because the resident has a service animal or an assistance animal. The association board and manager are then left to sort through the alphabet soup of laws and government agencies, determine whether the resident’s demand is valid, and inform the resident of the association’s position. Good times. This article seeks to provide some guidance on how to respond to these demands.
Associations’ Rights and Obligations Related to Service Animals
A “service animal” is a dog or miniature horse individually trained to provide assistance to an individual with a disability, under the Americans with Disabilities Act (“ADA”). Most associations are not subject to the ADA because they do not have places of public accommodation. As such, most associations are not required to allow service animals. However, associations that invite the public to use the associations’ amenities might be subject to the ADA. If an association is subject to the ADA, the association must allow the service animal access.
To determine whether an animal is a service animal, the association may ask two question: (1) Is this a service animal that is required because of a disability? (2) What work or tasks has the animal been trained to perform? Please note, if it is apparent that the animal is a service animal, the association may not ask these questions. For example, a dog guiding a person who is blind may not be the subject of inquiry. All that said, the association may deny access to the animal if (1) the animal is out of control; (2) the animal is not housebroken; or (3) the animal poses a direct threat to the health or safety of others. Additionally, effective 2017, Colorado has made it a crime to intentionally misrepresent that an animal is a service animal.
Associations’ Rights and Obligations Related to Assistance Animals
An “assistance animal” is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability, under the federal Fair Housing Act (“FHAct”). Generally, an association must allow an assistance animal in the association’s community, even if the association has a rule prohibiting the assistance animal. Please note, the FHAct protects all residents, including owners, tenants, and applicants/prospective residents. When a resident asks the association to allow an assistance animal despite the association’s restrictions on animals, the resident is requesting a reasonable accommodation.
To determine whether an animal is an assistance animal, the association must follow the reasonable accommodation process required by the FHAct. There are a few guiding principles to consider. First, the Association should actively engage in the reasonable accommodation request process. Second, if the requested accommodation is not granted, the Association should propose a less restrictive alternative. Third, the association should document the reasonable accommodation request process thoroughly.
Beyond these guiding principles, the association must take the following steps. First, the association must determine whether the person making the request is disabled, i.e. a physical or mental impairment that substantially limits one or more major life activities. Second, the association must determine whether the person making the request has a disability-related need for an assistance animal. If the person’s disability is not apparent, the association may request and obtain additional information to substantiate the person’s disability and the disability-related need for the assistance animal. If the association determines that requestor is either not disabled or does not have a disability-related need for an assistance animal, the association may deny the request. However, if the association determines the requestor is disabled and has a disability-related need for an assistance animal, then the association must allow the assistance animal.
However, the association need not allow an assistance animal if any of the following applies. First, allowing the assistance animal would impose an undue financial and administrative burden. Second, it would fundamentally alter the nature of the association’s services. Third, the specific assistance animal poses a direct threat to the health or safety of others. Fourth, the specific assistance animal would cause substantial physical damage to the property of others. Additionally, effective 2017, Colorado has made it a crime to intentionally misrepresent that a resident is entitled to an assistance animal.
Christian Webert is an associate at Moeller Graf, P.C., where he has spent the past five years specializing in all areas of common interest community law. You may find out more about Moeller Graf, P.C. at www.moellergraf.com.