Condominiums with “no-pets” policies increasingly are faced with the challenge of balancing the legal requirement to provide a reasonable accommodation to persons with disabilities against the right to maintain a pet-free community. Indeed, federal, state and even local laws may impose heavy fines and penalties against a housing establishment that fails to make a reasonable accommodation when required. The best way to deter pets from a pet-free community is to enforce diligently the existing no-pets policy. If a request for a reasonable accommodation is denied, it is incumbent upon the condominium to hold the owner in default for harboring an unauthorized pet, and if necessary, to commence a proceeding against the owner for breach of contract, in state court, within the jurisdiction where the condominium is located. The failure to act quickly to enforce the no-pets policy may result in the waiver of the right to do so. Bear in mind, however, that the no-pets policy must be enforced in a manner that protects persons with disabilities and avoids disability discrimination. The decision to reject a request for a reasonable accommodation with respect to the no-pets policy should be based on an interactive process that confirms or alleviates the condominium’s concerns regarding the resident’s qualifications for an accommodation (or lack thereof).
Nancy Durand, Esq.
Spolzino Smith Buss & Jacobs LLP
733 Yonkers Avenue, Suite 200
Yonkers, New York 10704
T 914 476 0600 F 914 457 0040
email@example.com / ssbjlaw.com
The best way to have a no-pets policy is to make it part of the Declaration. If not already there, it will require an affirmative vote of at least 2/3 of the units to amend the existing Declaration and the payment of the required filing fee to record the amendment to (or Amended) Declaration. Since the vote percentage is often difficult to obtain, once there, it will be hard to remove.
If the no-pet policy is not part of the Declaration, but rather a rule, then it is still effective until changed. Rules usually can be changed by the board alone, but it depends what your association’s governing documents provide.
I understand the emotional side to having granted a waiver to the owner who has cancer, but unless the pet is a certified service animal, the waiver works against the no-pet rule (as it shows uneven enforcement). Likewise, if the other 2 have not presented certifications as service animals, then those animals should be removed (by whatever process is set forth in the governing documents for a violation of same and by litigation if necessary).
Your association’s legal counsel should be able to help you work through these issues.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
The ADA and the Fair Housing Amendments Act of 1988, 42 U.S.C. §§3601 et seq. (“the act”) require housing providers such as condominiums, homeowner associations, and cooperative apartments to provide disabled persons with reasonable accommodations. Under the act, housing providers must provide reasonable accommodations that “may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B). Under the ADA, “reasonable modifications in policies, practices, or procedures [must be made] when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. §12182(b)(2)(A)(ii). Thus, reasonable accommodations must be made for people with physical or mental disabilities who need an animal to aid in their care. Disabilities may include neurological disorders, panic disorder, depression, and bi-polar disorder, among others. Even though some disabilities are not evident, the ADA and the act require housing providers to permit service animals to aid in the care of persons suffering from these infirmities even where a no-pets policy exists.
In Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), the Seventh Circuit held that a deaf tenant could be entitled to keep his dog if he could show that the animal was necessary as a service animal. The court specifically ruled that a deaf individual’s need for the accommodation afforded by a hearing dog is per se reasonable within the meaning of the Fair Housing Amendments Act. Id. at 429.
Under the ADA and the act, service animals must be permitted despite no pets policies if various facts are shown. Specifically, the animal must be trained and must work for the benefit of a disabled person. In addition, the disabled person should be able to demonstrate a medical need for the animal and the accommodation must be reasonable.
There is some debate as to the amount of proof of medical need that a resident must demonstrate in order to keep the animal. Generally, housing providers have the right to ask the person making a reasonable accommodation request to furnish documentation about the need for it. This is because when there is no need for the accommodation, the discrimination laws do not apply. See Bryant Woods Inn, Inc. v. Howard County, MD, 124 F.3d 597, 604 (4th Cir. 1997) (“If the proposed accommodation provides no direct amelioration of a disability’s effect, it cannot be said to be ‘necessary.”’).
On the other hand, at least one district court has ruled that requiring proof of professional training, in itself, is discriminatory. In Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253 (D. Ore. 1998), the district court granted summary judgment in favor of a deaf tenant who wanted to keep a hearing-ear dog. The housing authority argued that he could not prove the medical necessity for the dog. The court ruled that the housing authority violated federal statutes by requiring proof that the animal had received professional hearing assistance training. Id. After analyzing federal and state law on the subject, the court held that, “The only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of a disabled individual. There is no requirement as to the amount or type of training a service animal must undergo. Further, there is no requirement as to the amount or type of work a service animal must provide for the benefit of the disabled person.” Id. at 1256 (citing 28 C.F.R. §36.104). Because evidence showed that the dog barked when visitors knocked, the court held that the dog was a “service animal” under federal law. The court cited Bronk for the holding that there is no need for a service animal to be professionally trained.
It appears a resident’s legal position in seeking to keep the animal is strengthened where he/she obtains a physician’s note indicating that the animal will improve the patient’s health or enhance the patient’s quality of life. Statistics and studies have been cited in favor of residents in disputed service animal cases, such as a study showing that pet owners have lower blood pressure and lower triglyceride and cholesterol levels than non-pet owners do and generally live longer following coronary heart disease. Another example is the presentation of evidence that animals help the disabled cope with mental maladies, and that medication costs are significantly reduced.
Housing providers can also require that the request be reasonable. For example, the animals cannot be a nuisance. Service animals are required not to disrupt the peace. An occasional bark may not count but continuous noise that disrupts neighbors makes the request unreasonable. Likewise, the size and type of the service animal should accommodate not only the disability of the tenant but also the general ambiance of the housing environment.
Finkel Law Firm, LLC
PO Box 41489
Charleston, SC 29423-1489
There is no problem with having a provision in the covenants that generally bans pets. However, it is a violation of the Fair Housing Act to prohibit qualified service dogs or medically prescribed companion animals. You can ask the person to provide documentation supporting their claim that the animal is a service dog or prescribed companion animal.
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204