Epsten, APC

By Karyn A. Larko, Esq.

When a Board receives any request for a reasonable accommodation, whether the request is to keep an animal prohibited under the CC&Rs, to bring a service animal into portions of the community where animals are prohibited or for some other exemption to the association’s CC&Rs or rules, the Board must make a good faith effort to consider each of the following factors when deciding whether to grant or deny the request:

1. Does the requesting party have a qualifying disability?
   Federal law defines a disabled person as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.”  Walking, talking, hearing, seeing, breathing, learning, performing manual tasks and caring for oneself fall within the purview of “major life activities.”
2. Is the accommodation requested by the disabled person “reasonable”?
   There are several factors to consider in determining the reasonableness of the request, including, of course, whether the Association has the power to grant the request.  Another factor to consider is the cost to grant the accommodation as opposed to the benefit to be gained.  If the cost to the association is minimal and the benefit to the disabled person significant, the balance is in favor of granting the accommodation.
3. Is the requested accommodation “necessary”, not just convenient, to enable the disabled person to have an equal opportunity to use and enjoy his or her home or the common area facilities?
   Under the Federal Fair Housing Act (“Act”), a disabled person is not entitled to an accommodation if the accommodation is merely convenient, but he or she is entitled to a reasonable accommodation if the accommodation is necessary to allow him or her the equal use and enjoyment of his or her home or the common area facilities.  The purpose of the Act is to grant disabled persons “equal” not preferential use and enjoyment of their homes and the common area.

Additionally, how does a board know if the resident is really disabled – especially if the disability is not apparent?

It is important to know that a Board may not ordinarily inquire as to the nature or severity of a resident’s disability. However, in response to a request for a reasonable accommodation, the Board may generally request disability-related information only that:

1. Is necessary to verify that the person meets the definition of disabled under Federal law;
2. Describes the needed accommodation; and
3. Shows the relationship between the resident’s disability and the need for the requested accommodation.

Having said this, if the resident’s disability is obvious, or otherwise known to the Board, and if the need for the requested accommodation is also readily apparent or known, the Board may not request any additional information.

If the resident’s disability is known or readily apparent to the Board, but the need for the accommodation is not readily apparent or known, the Board may request only the information necessary to evaluate the disability-related need for the accommodation.

If the resident’s disability is not known or readily apparent to the Board, the Board can require the resident to provide written verification of his or her disability from a health care professional. Once the Board establishes that a resident is disabled, the Board should only request the information necessary to evaluate whether the requested accommodation is needed.

Never forget that an association must keep confidential all of the information it obtains related to a resident’s disability. This information cannot be shared with the membership or any other persons unless the disclosure is required by law.

We are here to help you navigate this tricky area of the law and avoid costly claims of discrimination.  …if in doubt, call your legal counsel!

By Karyn A. Larko, Esq.

It is common for associations to have CC&Rs provisions or rules that prohibit residents from bringing pets into the clubhouse, pool complex or other portions of the common area. It is also increasingly common to see residents bring animals in these areas despite such prohibitions.

While it may appear that this trend is indicative of a growing disregard for the important role associations and their governing documents play in residential communities, the reality is that in many cases, these residents may have a legitimate right under federal law to have their animals with them.

Remember, homeowners associations are subject to the Federal Fair Housing Act (the “Act”). Under the Act, a housing provider (a homeowners association is considered to be a housing provider) must grant reasonable accommodations to those with qualifying disabilities whenever the accommodation is necessary to give the disabled residents an equal opportunity to use and enjoy their homes and the common area facilities.

One of the most common disability-related requests associations receive is to allow disabled residents to bring their service animals into portions of the common area where pets are prohibited. Under the Act, both traditional service animals (e.g., seeing eye dogs) and emotional support or comfort animals (“ESA”) qualify as service animals.

Because disabilities requiring ESA (e.g., depression, anxiety, PTSD) may not be readily apparent, it may not be possible to differentiate a pet from an ESA through visual observation of the resident. Moreover, because no specific training, skills, certification or characteristics are needed to be an ESA, many animals that you might not envision being service animals may, in certain circumstances, qualify as ESA service animals.[1]

For these reasons, we recommend:

1. Broach any apparent pet related governing document violation cautiously and discretely.
2. Seek legal counsel any time a resident requests an exemption to any of the association’s pet restrictions on the basis that he or she is disabled.

Following these two key points are certain to help keep you and your association “out” of the doghouse!

[1] The benefits of an ESA are deemed to come from the animal’s inherent qualities, which include emotional support, comfort, and feelings of safety.