Public Policy on Pets and Assistance Animals
POLICY
Community Associations Institute (CAI) recognizes and supports the rights of residential community associations to regulate and adopt their own rules pertaining to pets and assistance animals living in their communities. CAI also recognizes the rights of individuals with disabilities to receive the assistance they need and supports state and federal law guaranteeing such rights.
CAI supports legislation that specifically allows community associations to request documentation to verify the need for an accommodation for an assistance animal.
CAI supports legislation that imposes penalties for fraudulent requests for service or emotional support animals.
CAI does not support legislation that contains provisions prohibiting community associations from fairly adopting rules governing animals.
ABOUT THE COMMUNITY ASSOCIATION HOUSING MODEL
While community associations come in many forms and sizes, all associations share three basic characteristics: (1) membership in the association is mandatory and automatic for all property owners; (2) certain legal documents bind all owners to defined land-use requirements administered by the community association; and (3) all property owners pay mandatory lien-based assessments that fund association operations.
The community association housing model is actively supported by local government as it permits the transfer of many municipal costs to the association and homeowners. Today, many community associations deliver services that once were the exclusive province of local government.
Community associations are governed by a board of directors or trustees elected by their members. This board guides the association in providing governance and other critical services for the community usually funded by property taxes.
BACKGROUND
The Americans with Disabilities Act (ADA) and Fair Housing Act (FHA) are federal laws which have provisions regarding assistance animals. The ADA applies to service animals in places that are open to the public, which may include community associations in certain cases, whereas the FHA applies solely to service and emotional support animals in housing. The ADA recognizes only dogs and miniature horses in both categories and the requirements are relatively straightforward. However, the FHA pertains to all animals and a very wide range of disabilities, resulting in varying legal interpretations.
Understanding the difference becomes important for associations. A service animal is specifically trained to work or perform tasks for individuals with disabilities whereas an emotional support animal is an animal (also referred to as assistance animal) that provides comfort for people with disabilities.
The FHA requires associations to provide exemptions for service and emotional support animals from certain pet policies and rules. Further, the FHA requires associations to provide reasonable accommodations when requested by residents for service and emotional support animals if the resident has a disability, the animal serves a function directly related to the disability, and is necessary to afford the resident with the equal opportunity to use and enjoy their dwelling. However, the accommodation must be “reasonable,” which does not mean “absolute.” Rather, the reasonableness requirement limits accommodations to those that do not impose an “undue hardship” by causing excessive financial burdens to the community association or that fundamentally alter the nature of the community association. According to the Fair Housing Act, people who have a qualifying disability are permitted to keep their service animals within their condominium, homeowners association, or cooperative. Emotional support animals are also given permission to stay in “no pet” community associations; however, in certain instances if the resident’s disability is not readily apparent, the FHA allows housing providers the ability to ask for reliable documentation from a physician, psychiatrist, or other trained professional to confirm the need for the emotional support animal. If the disability is readily apparent or known but the disability-related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability-related need for an assistance animal.
This documentation serves the purpose of:
verifying the condition that substantially limits one or more of the resident’s major life activities.
describes the needed accommodation.
demonstrates the relationship between the person’s disability and the need for the requested accommodation.
When the disability is evident, the association is required to make a reasonable accommodations in its rules, policies, and practices to afford the disabled resident equal opportunity to use and enjoy the property. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support. Community associations should also ensure that they are aware of any requirements under state law that relate to emotional support and service animals, as many states have adopted civil rights statutes that are similar to the ADA and FHA.
RECOMMENDATION
CAI recommends that members utilize their right to request reliable documentation when a resident’s disability is not readily apparent or, if the disability is readily apparent or known but the disability-related need for the assistance animal is not, the association should ask the resident to provide the same reliable documentation. CAI supports changes in state and federal laws which further defines a housing provider’s ability to request documentation. CAI opposes duplicative legislation at the state level which redefines an association’s ability to request documentation already allowed under the Fair Housing Act or legislation which inhibits an association’s ability to request this documentation. CAI also supports legislation that imposes penalties for fraudulent requests for service or emotional support animals.
MODEL LEGISLATIVE LANGUAGE
Many states are in the process of statutorily acknowledging consequences for fraudulently misrepresenting the animal as a service animal or the need for the emotional support animal. If your state is working on legislation to do so, please consider the following language, approved by CAI, when defining a community association in the bill:
“Common Interest Community or Association.” The organization established to operate any condominium, homeowner association, cooperative, or planned community.
“Housing Provider.” A landlord or community association.
Consider the following model language as a guide for when an association wishes to request documentation of disability under FHA when questioning a service or emotional support animal:
RIGHT TO REQUEST DOCUMENTATION
A housing provider that receives a request from a person to make an exception to a relevant policy prohibiting animals or limiting the size, weight, breed, or number of animals on the housing provider’s property or within property controlled by the association because the person requires the use of an assistance animal or service animal may require documentation of the need from a licensed medical provider.
The person may be required to produce documentation of the disability or disability-related need for the animal only if the disability or disability-related need is not clear or known to the housing provider.
POLICY HISTORY
For more information on the implications of pet policies within community associations, see “Pet Policies: How Community Associations Maintain Peace and Harmony – A Guide for Association Practitioners,” available from CAI Press. www.caionline.org/shop. Access free downloads and charts on assistance animals at https://www.caionline.org/Advocacy/Priorities/assistanceanimals/Pages/default.aspx
Approved by CAI Government & Public Affairs Committee October 10, 2019