Community Associations Update - September 2015
Service Animals and the FHA
By: Audrey Shakra
The Fair Housing Act (“FHA”) applies to community associations and establishes the regulations with which private “housing providers” must comply. This article will explore the possible responses an association may have to a community association member requesting the use of a service animal under the FHA.
The FHA imposes regulations to prevent discrimination based on disability and it applies regardless of the presence of federal financial assistance. It is important to remember that, under the FHA, a service animal is not a pet. Instead, the FHA states a service animal is one that works; provides assistance; 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.1 The FHA also does not require a service animal to be trained or certified.
What Housing Providers Can Do
As a starting point, if a resident requests for use of a service animal and his or her disability or disability related need is readily apparent or already known to the association, then the association may not ask for documentation. For example, if the individual is visually impaired and is requesting use of a guide-dog, the association may not ask for documentation for either the disability or the need of a guide-dog. These guidelines are based on the underlying rule that associations must evaluate each request for a reasonable accommodation on an individual basis.
However, if the requesting individual’s disability or the disability-related need for the service animal is not readily apparent or known, then the association may ask the individual to provide documentation of the disability-need for an assistance animal. For example, an association may ask for documentation from a physician, psychiatrist, social worker, or other mental health professional from an individual needing a service animal that provides emotional support.
However, when making a determination as to whether an individual is entitled to a service animal under the FHA, an association must only consider the following two questions:
Does the person seeking to use and live with the animal have a disability, i.e. a physical or mental impairment that substantially limits one or more major life activity?
Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to either question (1) or (2) is “no”, then the association need not modify its “no pets” policy and the reasonable accommodation request may be denied. If the answer to both question (1) and (2) are “yes”, then the association must modify or provide an exception to a “no pets” rule or policy to permit the person with a disability to live with and use a service animal in all areas of the premises where persons are normally permitted access.
Exceptions to the Rule
If the answers to the questions listed above are both “yes”, then the association may still deny a person with a disability the right to live with and use a service animal if one of the below exceptions applies:
If the specific service animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
If the specific service animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
When an association is evaluating the above exceptions, (s)he may not consider the breed, size, and weight limitation of the animal. Instead, the provider must determine the threat of harm to others or to the property on a case-by-case basis that relies only on objective evidence about the specific animals’ actual conduct, not speculative conduct of the type of animal in question. Additionally, conditions the association has placed on house pets are inapplicable to a service animal and thus inapplicable to determining if an exception applies.
Many are often familiar with the Americans with Disabilities Act (“ADA”), which applies only to state and local government programs, services activities, and facilities and to public accommodations. While there has been some debate around an association’s office qualifying as “public” space thus making the ADA applicable, the Eastern District of California recently held that an association’s office is a private facility exempt from the ADA.2 This is important because the ADA defines “service animal” very narrowly as an “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”3 As noted above, associations are bound to a broader definition of “service animal”, making service animals more readily available for requesting individuals with disabilities.
Association should always remember to handle service animal requests on a case-by-case basis and limit their inquiry to whether the individual requesting the accommodation has a disability and need for the service animal. Of course, if the Association has any questions, it is best served by contacting legal counsel to ensure it is properly complying with the FHA.
1. U.S. Department of Housing and Urban Development FHEO Notice 2013-01 (April 25, 2013).
2. See Pappion v. R-Ranch Property Owners Association, No. 2:13-cv-01146-TLN-CMK (E.D. Cal. May 21, 2015).
3. 28 C.F.R. § 104
Legislative Update for Delaware
By: Chad Toms
The following items of legislation from the 2015 session may be of interest to Delaware Common Interest Communities:
- Delaware House Bill 177 passed the House on June 18, 2015 and the Senate on June 30, 2015. HB 177 would amend Titles 25 and 26 of the Delaware Code related to Public Utilities and the Delaware Uniform Common Interest Ownership Act. This bill would require utilities to maintain a third party notification system that allows a customer to designate a third party to receive notice prior to a termination of service. For example, a condominium association could receive notice of a utility disconnect making it aware that a unit may be at risk of frozen water pipes. This bill would also specifically allow condominium and common interest communities to adopt bylaws that require unit owners to designate the unit owners’ association as a third party to receive notification prior to a termination of utility services. The bill would direct the Common Interest Community Ombudsman to promulgate a form bylaw for use by common interest community associations and unit owners to designate the Home Owners’ Association as a third party to receive notification of a termination of service pursuant to any third party notification system. The bill has not yet been signed by the Governor. If signed by the Governor, the new law will take effect 60 days after enactment.
- Delaware Senate Bill 5 passed the Senate on May 7, 2015 and the House on July 1, 2015. SB5 would amend Title 25 of the Delaware Code relating to the Delaware Uniform Common Interest Ownership Act. SB5 would affirmatively authorize preexisting common interest communities and approved common interest communities to comply with any or all of the provisions of the Delaware Uniform Common Interest Ownership Act that they are not already obligated to comply. This Act may be cited as the Benjamin Kuntz Act. Mr. Kuntz was a dedicated Delawarean who spent countless hours chairing the Kent County Levy Court’s Homeowners Associations Resolving Problems (HARP) Committee advocating for homeowner associations. The bill was signed by the Governor on August 13, 2015.
One proposed item of legislation that did not pass is Delaware House Bill 95. HB95 sought to amend Title 25 to address the circumstances where homebuyers purchase investment properties or second homes in Delaware but do not receive mail to that location. The proposed change would have required that any notices be sent with a certificate of mailing to the billing address on file with the local county tax office, unless the homeowner directs otherwise.
We will continue to monitor the implementation of these items of legislation, but please contact us should you have any questions about how this legislation might relate to your communities.