Can I Keep My Service Dog Even Though My Association’s Covenants Don’t Allow It?

The “seeing-eye dog” of yesterday has been replaced by many different kinds of animals that assist persons with many kinds of disabilities. Today, “service,” ”companion,” “therapy,” “support,” and “assistance” animals provide mobility for the sight and hearing impaired and emotional support for persons with depression, anxiety, or mental disabilities. They can help people with epilepsy, diabetes, chronic pain, or other medical conditions. Despite uncontroverted evidence that these animals (we’ll call them “service animals” for simplicity going forward) are useful, therapeutic, and needed by disabled persons, owners who want to keep them may run afoul of pet restrictions in their community associations, condominium associations, and HOAs. Also, an association resident may try to keep a pet by falsely claiming a disability and/or claiming that the pet is a service animal. This article explores the legal issues surrounding the keeping of service animals in associations with pet restrictions.

Colorado law and the Federal Fair Housing Act require associations to provide reasonable accommodation so that a disabled person can enjoy an equal opportunity to use their dwelling as well as public and common areas. This means that in most cases, associations with pet restrictions may not ban a disabled resident from keeping a service animal, which is generally defined as one that is individually trained and works for the benefit of the disabled person. The key is for residents and associations to remain within the bounds of the law.

While the Fair Housing Act has different provisions for different types of service animals, associations can stay on the right side of the law by treating all service animals the same. Associations or their boards should ask the resident requesting to keep the animal to provide a letter from a medical professional specifically stating that the person has a disability as defined by the Fair Housing Act and that the specific animal is necessary to assist with the disability, justifying reasonable accommodation in a community that does not allow dogs. Often, asking for such specific language will make a person who really doesn’t qualify less likely to follow through on the request. It will also dissuade a medical professional from providing the letter to such a person. If the resident is unable to provide proof of the need for the reasonable accommodation, then the association can prohibit the animal. Regardless of the type of service animal, the person has to have a verifiable disability, and there needs to be an identifiable relationship between the disability and the animal’s ability to assist with it. Of course, residents should never attempt to “fake” a disability or falsely claim that their pet is actually a service animal when it is not.

Unfortunately, there have been examples where a person has claimed that their untrained pet dog is an assistance animal. In such cases, associations have sued residents for violating a pet restriction, and these cases have been litigated in the courts and administrative tribunals. In an administrative law decision by the Department of Housing and Urban Development (HUD), a cat was found to provide therapy for pain symptoms of fibromyalgia, and the cat was allowed to violate the “no pet” rule even though it had no training. Similarly, a dog was allowed to stay on “no pet” premises where the owner suffered from depression and the dog was said to help with the symptoms by providing comfort. There are cases where the courts have allowed a resident to keep an animal with only minimal training, or where they have allowed residents to use their own pets provided that they train them later to become service dogs. On the other hand, a federal district court in Hawaii ruled in favor of an association when it found that a pet dog that was purported to be a service animal had never been trained.

Associations and their boards do not have the right to know the specific disability, only that the resident is disabled and has the right to reasonable accommodation. They do, however, retain the right to impose rules and regulations regarding resident and animal behavior. For example, an association can mandate that the disabled resident or her medical provider retain control of a service dog all times while in the common areas and that they pick up after the dog. Association rules requiring that the dog does not bark excessively, present a threat to others, cause disturbances, ruin the common areas, or otherwise violate the covenants or rules of the association will usually be deemed valid. Associations can require dog walking in designated areas only provided that this doesn’t present an undue hardship to the disabled person. A therapist may be able to bring a service animal into an association for the purpose of working with a disabled resident. However, a therapist who herself is a resident of an association may be prohibited from housing service animals and seeing patients at the residence because that would likely be a commercial use in violation of the association’s rules.

If the board receives proof that the resident is disabled and needs a service animal, it should document by resolution that reasonable accommodation was made. Thus, if other homeowners complain or request to keep pets of their own, there is a record showing that the board granted a reasonable accommodation for the service animal in compliance with federal fair housing law. The board should not disclose any facts regarding the disability. Three federal agencies – HUD and the Departments of Justice and Transportation – enforce the service animal provisions of the Fair Housing Act, with the Justice Department prosecuting violations through its Americans With Disabilities Act/Civil Rights Division. Under federal law, refusal to accommodate persons with disabilities is discrimination that is actionable in the courts. Private parties may bring lawsuits to obtain court orders to stop discrimination. No monetary damages will be available in such suits beyond the award of a reasonable attorney’s fee. If an individual files a complaint with an Attorney General who then brings suit, however, monetary damages of up to $100,000 may be awarded.

This article is only meant to provide a current, brief summary of the issues that come up when there is interaction between disabled residents’ needs, community associations’ pet restrictions, service animals, and federal fair housing laws. Please consult an attorney for further information, advice, and any changes to the law.

 

Cinthia M. Manzano is a shareholder with Frascona, Joiner, Goodman and Greenstein, P.C. Her practice areas include Construction Defect, Construction, Special Needs Education Law, Real Estate, Litigation, and Association Law. Contact Cinthia Manzano.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

CINTHIA M. MANZANO