More and more associations are facing the issue of emotional support and assistance animals. Often, these animals do not present any problem for an association, but what happens when an emotional support or assistance animal violates the association’s pet policy? In those instances, several factors weigh into the decision making process to determine whether a medical necessity claim is valid and whether the requested accommodation is reasonable.
Most of the law regarding pet restrictions has developed in the landlord/tenant realm, but similar application of the law has been growing in associations. Several protective statutes have been interpreted as requiring exceptions to pet restrictions for animals providing “emotional support” in addition to animals that have traditionally been thought of as assistive, such as seeing-eye dogs or hearing dogs for the deaf.
However, individuals cannot claim an exception to pet restrictions for “emotional support” without a medical basis and a letter or a prescription from a medical doctor or psychologist. The person requesting the exemption must have an actual disability. According to a 2004 statement released by HUD, a housing provider may request reliable disability-related information in response to a request for a reasonable accommodation that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability.
If an association chooses to challenge a medical necessity claim and enforce its pet restrictions, the person requesting the accommodation has the burden of proving a four-part test in order to succeed in a claim against the Association. Under the Fair Housing Administration Act (FHAA), the person requesting the accommodation must prove:
- He or she suffers from a handicap as defined in the FHAA;
- The Association knew of the handicap or should reasonably be expected to know of it;
- Accommodation of the handicap is necessary to afford the resident an equal opportunity to use and enjoy the dwelling; and
- The association refused to make such accommodation.
Regarding the “necessity” of the animal (part 3 of the test), in the 2004 case of Oras v. Housing Authority of City of Bayonne, the court determined that the following factors should be evaluated:
- The extent plaintiff's ability to function is facilitated by the accommodation;
- The training the animal received; and
- The [defendant’s] existing policy of permitting certain tenants to have [other types and sizes of animals].
Each situation is extremely fact specific and requires a balancing test of all the facts.
The FHAA prohibits housing discrimination based on several classifications, including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” Along with the tests noted in Part I, above, courts frequently determine whether a requested accommodation is reasonable by using a balancing test that would weigh the association’s economic or aesthetic concerns against the disabled person’s benefit from the accommodation. It is essentially a cost-benefit analysis.
It is important to note that a reasonable accommodation does not have to be specific compliance with the person’s request. In Jones v. Aluminum Shapes, Inc., the court explained that a reasonable accommodation is “the duty … to attempt to accommodate the physical disability” but it is not a duty “to acquiesce to the disabled [party’s] request for certain benefits.” For example, a person is not necessarily entitled to have an animal of any size or to bring that animal anywhere on the property.
It is critical that associations take assistance animals requests seriously. Courts do not look kindly upon violations of the Law Against Discrimination. NJLAD and the above-referenced HUD regulations provide for punitive damages, compensatory damages, and attorney fee shifting for violations. Refusing a reasonable accommodation can become very costly for an association.
In order to maintain uniform enforcement, any association facing challenges to its pet policies should pass a resolution; laying out the specific requirements a unit owner must meet in order to be allowed to have an assistance animal in the community.