Service Animals And The FHA
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