Thought Leadership

Is there actually such thing as a No Pet Property in a Homeowners Association?

Many homeowners associations restrict or prohibit pets. This may make the property attractive to buyers who have allergies, a fear of dogs, or who simply do not want to live in that type of environment with pets. But when is a “pet-free” property not pet free? The answer, of course, is that a property with pet restrictions may still have to allow service or support animals as a reasonable accommodation for residents with disabilities. Technically, under the Federal Fair Housing Act (“FHA”) and the Minnesota Human Rights Act (“MHRA”), a service or support animal is not considered a pet and is, therefore, not subject to any rules or restrictions that an association may have on pets. Therefore, even if the association’s governing documents or rules prohibit pets completely or contain restrictions on the type, number, or size of animal allowed, those pet restrictions will not be applicable to a service or support animal that assists a resident with a disability.

What is the difference between a service animal and a support animal?

For purposes of the FHA and MHRA, there really is no difference between a service animal or a support animal, as any animal that assists someone with a disability is treated equally under these Acts. However, other laws treat these types of animals differently, which can lead to confusion and misunderstanding. A service animal is defined under the Americans with Disabilities Act (“ADA”) as a dog (or miniature horse) that is specially trained to assist someone with a disability. A good example of this would be a seeing-eye dog that is specially trained to assist someone with visual impairment to navigate their environment. Dogs can also be trained to retrieve items or perform other tasks for persons with mobility issues or to alert others in the case of a seizure or any number of other services for persons with disabilities. Other animals that are not specially trained dogs, including animals that only provide emotional support, are not considered service animals under the ADA. Service animals are protected under the ADA as a reasonable accommodation for disabled persons, whereas animals that do not qualify as service animals are not protected. However, the ADA only applies to governmental facilities and places of public accommodation, such as shops, restaurants, hotels, etc. where the general public is welcome. The ADA does not apply to private property such as a homeowner’s association.

A support animal is any animal that does not qualify as a service animal under the ADA that assists a person with a disability. It can be an animal other than a dog, such as a monkey or bird, that is specially trained to perform tasks, or it can be a dog that assists someone with a disability but is not specially trained to do so, or it can be any animal that provides only emotional support for a person with a mental or emotional disability.

While these distinctions are important under the ADA for determining what animals are allowed in places of public accommodation, they make no difference in the fair housing context. Service and support animals are treated equally under the FHA and MHRA.

What information can be requested?

The FHA and MHRA both prohibit discrimination in housing on the basis of several protected classes, one of which is disability. Under both Acts, it is considered discriminatory to refuse to make a reasonable accommodation in an association’s rules, policies or practices when doing so is necessary to afford a disabled person an equal opportunity to use and enjoy the property, including the common areas and amenities. When faced with a request for a reasonable accommodation, an association must determine whether the person on whose behalf the request is made is disabled and whether the requested accommodation is necessary to assist them with that disability. If a resident’s disability and disability-related need for an accommodation are known or obvious, then the association cannot request any additional information or documentation to support the request. However, if the disability and/or the disability-related need for the particular accommodation are not known or obvious, the association may request reliable information that is sufficient to establish that the person is disabled and that the requested accommodation is necessary and will assist with or help alleviate the effects of the disability. If a resident is requesting an accommodation for an animal other than a typical household pet or is seeking to have multiple service or support animals, a housing provider is also allowed to ask some additional questions to determine whether the requested accommodation is necessary and appropriate for the type of housing.

The U.S. Department of Housing and Urban Development (“HUD”) published updated guidelines in January 2020 aimed at assisting housing providers and residents in understanding what type of information and documentation can be requested in connection with a request for an accommodation for a service or support animal under the FHA. These guidelines use the distinction between service and support animals as a framework, since many people are familiar with the terminology, but also make it clear that the Act applies equally to service and support animals. The guidelines further point to the recent trend regarding websites that are in the sole business of providing doctor’s notes for emotional support animals to anyone willing to pay for them and make it clear that a note purchased from one of these websites will not be deemed reliable documentation of a disability or disability-related need for a support animal and that, to be deemed reliable, documentation must come from a medical provider that has actual personal knowledge of the person that is sufficient to be able to diagnose and/or treat them for their disability.

Can an association impose any restrictions on a service or support animal?

Some boards think that if they have granted someone’s request to have a service or support animal in their unit, that the board has fulfilled its obligations under fair housing laws and that nothing else is required of them. They then proceed to impose so many restrictions on the owner with the service or support animal that they have effectively denied that person an equal opportunity to use and enjoy the property. For most purposes, a service or support animal should be treated no differently than a wheelchair or other similar implement and should be allowed anywhere on the property that the disabled resident goes. Exceptions may be made for legitimate health and safety reasons, such as prohibiting animals from being in the pool or in food preparation or service areas. An association can also adopt reasonable rules regarding animals that apply to service and support animals, such as requiring an animal to be registered with the association and be up to date with any required vaccinations, requiring that an owner clean up after the animal and that the animal be leashed or in a carrier when outside of the home. It can also have rules prohibiting the animal from becoming a danger or nuisance to other residents. If an owner violates any of these rules, the association can impose reasonable fines if permitted under its governing documents but cannot require the removal of the service or support animal unless that animal is an actual threat to persons or the property and that threat cannot be eliminated or reduced by further accommodations. Additionally, an association can charge a unit owner for damage to the property caused by a service or support animal if it is the association’s policy to charge other nondisabled owners for similar damages to the property. An association cannot enforce any pet restrictions on the number, type, size or breed of animal when it comes to service and support animals. It also may not charge any fees to an owner for having a service or support animal and cannot require that the owner carry any additional insurance that is not required of other owners or impose any other restrictions that would have the effect of penalizing a resident for having a service or support animal. Having or enforcing these types of rules can also be the basis for a discrimination claim against an association.

Fair housing laws can be complicated and confusing. Boards and managers that attempt to navigate this area alone may find themselves being charged with a discrimination complaint even when they are trying to do the right thing. As such, it is usually recommended that they work with an attorney who has experience in this area and can guide them through the various issues that might arise in their operation of an association.

For questions about any issues regarding community associations, please feel free to contact the author.

ABOUT THE AUTHOR

Phaedra J. Howard
Phone: 952-746-2142
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