BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Assistive Animals and HOA’s
Q: I am representing a buyer who just ratified a contract to buy a condominium. My buyer has a “companion animal,” a dog that weighs about 40 lbs. She has a letter from her doctor stating that the dog is necessary for her psychological condition. The HOA documents just arrived and the By-Laws state that owners may only have one dog not more than 20 lbs. The listing agent contacted the HOA management company about my buyer’s companion dog and provided the doctor letter. But the HOA is adamant that there is no exception to the 20 lb. limit, and will refuse to allow her to have the dog on the premises. Can they do that?
A: In a word “No.”
Increasingly, HOA’s receive requests to allow a “reasonable accommodation” for a buyer, tenant or an existing HOA member to have a “Companion” or “Service Animal.” There are specific laws regulating service and companion animals under the Fair Housing Act (“FHA”) and, if applicable, the Americans with Disabilities Act (“ADA”). These laws apply to residential landlords and to HOA’s.
I. BACKGROUND
A. Definitions of Assistance Animals for Disabled Persons: Assistance animals are animals that work, provide assistance or perform tasks for the benefit of persons with a disability. Also included are companion animals that provide therapeutic benefits to persons with a mental or psychological disability. These animals are not limited to just dogs or any other type of animal for that matter. There are several different types of Assistive or Support Animals for persons with physical, mental or psychological disabilities, as follows:
A. “Guide Animal” means any animal, though usually a dog, that was trained to assist blind or seeing-impaired individuals.
B. “Signal Animal” means any animal trained to alert an individual who is deaf or hearing-impaired to intruders or sounds.
C. “Service Animal” means any animal individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.
D. “Companion Animal,” also called “Therapy animal,” means any animal for persons with mental or psychological disability.
B. Assistance Dog Tags: California Food and Agriculture Code provides that local animal control departments shall issue “Assistance Dog” tags for service dogs, guide dogs, etc. However, such tags are not required to have the animal qualify as an assistance animal.
II. APPLICABLE LAW
1. Fair Housing Act (“FHA”): Landlords and HOA’s are governed by the FHA, which prohibits discrimination against disabled individuals in providing housing accommodations. The FHA covers nearly every type of housing provider, whether privately owned or federally assisted, including landlords and HOA’s. Under the FHA, a disability is defined as a physical or mental impairment which significantly limits a person’s major life activities. It is the basic law which defines what constitutes “Fair Housing” and violation of the fair housing laws.
See Weekly Practice Tip “Discrimination in Housing” for more detail
2. HUD Memorandum: In 2013, the Department of Housing and Urban Development (“HUD”) issued a memorandum on this subject intended to clarify the FHA for all housing providers, including HOA’s, regarding various types of assistive animals when the provider receives a request for a “reasonable accommodation” for an assistive animal from a tenant or HOA member or prospective HOA member.
That memo recommends that a housing provider evaluate a reasonable accommodation request carefully and must consider:
1. Does the person have a disability?
2. Does the person making the request have a need for the assistance animal related to the disability?
If the answer to both of these questions is “Yes,” then the HOA must provide a “reasonable accommodation” to the applicant to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider's services. (However, such animals are not allowed in pools or spas.)
The request may also be denied if:
1. The specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; or
2. The specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
Note that breed, size, and weight limitations may not be applied to an assistance animal. For example, a service animal cannot be denied because it is a breed that may have a reputation as being dangerous. However, the animal’s owner is responsible for the conduct of the animal such as biting, threatening, damaging property or leaving messes.
Training or Certification Not Necessary: Assistance animals perform many disability-related functions and there is no requirement that an assistance animal be individually trained or certified.
Assistive Animals Are Not Pets: Assistance animals are not considered pets under the FHA. Restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal.
Documentation: Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance 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. For example, the housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.
For more information regarding the HUD Memorandum go to:
https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
PRACTICE TIPS:
BUYER AGENTS:
1. If you are representing a buyer interested in buying in an HOA, and that buyer has an animal which is represented to be an assistive animal, advise your client to review the HOA documents to see if the HOA documents have written rules permitting such an animal.
2. If no such rule exists, inquire of the listing agent to determine if the HOA will allow the buyer to live in the community with the assistive animal. If the HOA answer is that that animal will not be allowed, refer your client to a qualified California real estate attorney for advice.
3. Many HOA managers/officers are unaware of the fair housing requirements to provide a reasonable accommodation for persons with assistive animals.
LISTING AGENTS:
4. If a buy agent makes a request for their client to buy and live in the community with an assistive animal, ask the seller to contact the HOA management to determine their acceptance of such an animal.
5. If the HOA indicates that they will not allow such an animal in the community, advise your seller to suggest to the HOA that they consult with their fair housing attorney regarding the applicable law regarding such animals.
For an excellent fair housing resource for agents and their landlord or HOA clients, the law firm of Kimball, Tirey and St. John LLP has prepared a “California Fair Housing Encyclopedia” which is available for $27.95 (at the time of this Tip) online from their site at:
http://kts-law.3dcartstores.com/The-California-Fair-Housing-Encyclopedia_p_9.html
This is a valuable booklet on the subject of fair housing laws with more information on dealing with service and assistive animals.
Many agents buy copies for their landlord and HOA clients.
DO NOT FORWARD TO CLIENTS. Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.