Many condominium and community associations are receiving increasingly frequent requests from residents to keep dogs and other “assistance animals” in communities that do not allow pets. Where pets are allowed, the requests are often for dogs that are much larger than the maximum weight limit, or are for a prohibited breed of dog, such as a pit bull. For even those associations that allow pets without size or breed restrictions, almost all have rules addressing issues that associations face when pets are allowed. Whether your association’s restrictions are based on provisions in the declaration or are included in the rules adopted by the board, those restrictions may not apply if a proper request for an assistance animal is made. Although understanding and navigating this area of the law may seem much like trying to find your way out of the Bermuda Triangle while blindfolded, don’t fret, this article will provide your association with steps to take the next time it receives one of these requests.
What is an Assistance Animal?
According to the U.S. Department of Housing and Urban Development, an assistance animal is not a pet. Rather, an assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” Many people confuse “assistance animals” with “service animals” and assume that exceptions must only be made for persons with physical disabilities, such as a seeing eye dog for a resident who is blind. But assistance animals include a much broader group of animals. Assistance animals are not limited to dogs. Nor are they limited to specific breeds, sizes or types of animals. In fact, any animal can be an assistance animal. This is true even if the type or breed of animal is typically considered to be dangerous. Further, assistance animals do not need to be certified or trained. An animal qualifies as an assistance animal so long as it helps the individual deal with his or her disability.
Who Is Entitled to Keep an Assistance Animal in a “No-Pet” Community?
Any person with a disability, including a physical, mental, or emotional disability, is entitled to a reasonable accommodation. Federal fair housing law requires associations to allow disabled residents to have assistance animals in communities which otherwise prohibit pets or restrict the size, type or breed of animal, if a proper request is made.
Requests for assistance animals beg two important questions: 1) Is the person making the request disabled?, and, 2) Does the animal alleviate one or more of the symptoms or effects of the disability? If the answer to these questions is yes, then a reasonable accommodation must be granted, despite any prohibitions or restrictions to the contrary for that association.
What Documentation Must a Disabled Person Provide in Order to Keep an Assistance Animal?
If the disability is not readily apparent, a disabled person seeking a reasonable accommodation must provide reliable documentation from a licensed healthcare professional to establish that he or she suffers from a disability. The disabled person must also provide documentation that he or she has a disability-related need for the assistance animal. In other words, the animal must help with one or more of the symptoms or effects of the disability.
What Should An Association Do When It Receives A Request for An Assistance Animal?
- Review and respond in writing as soon as possible.
- Request documentation. Unless the necessary documentation is provided with the request, the association should request documentation to establish that the individual suffers from a disability and that the animal will help with the disability. If the documentation provided does not satisfy these requirements, the association should respond in writing and provide the individual with at least one opportunity to provide supplemental documentation. However, associations cannot request medical records or require a medical provider to give specifics about the person’s disability.
- Confirm that the documentation is reliable. The documentation should come from a licensed physician, psychiatrist, social worker or other mental health professional. Be wary of online services which provide emotional support letters for pets in exchange for a fee. The reliability of such letters is often doubtful when there has been no meaningful treatment relationship. Further, providing a certificate or identification card stating that the animal has been registered does not establish that the resident is disabled or that the animal will help with a disability.
- Evaluate each particular animal. Associations should consider only that particular animal when responding to a request. Assistance animals cannot be denied simply on the basis of breed or species. And yes, this applies to even those types of animals presumed to be dangerous such as a python snake or a pit bull. Instead, the request must be analyzed for that particular animal. If that particular animal has done something to indicate that it poses a danger, such as biting or attacking someone in the past, the association may have a basis for denying the request. But do not deny an animal based on the assumption that it will be dangerous or cause damage because of its breed or species. The only question to ask is whether that specific animal will help with the person’s disability. Further, assistance animals are not required to be trained or certified.
- Maintain confidentiality. The information provided by the requesting individual should remain confidential.
- Vote on the request at an open meeting.
- Seek legal counsel when in doubt. If the association has any doubts or concerns about the request or the reliability of the documentation received, seek counsel. This area involves very complex laws and the association may face liability if a request is improperly denied. In fact, denials of these requests are often the basis for discrimination claims filed with the Illinois Department of Human Rights or the filing of a lawsuit.
What Should An Association Do When It Grants A Request?
- Grant requests subject to terms and conditions. Associations may hold the owner of the assistance animal liable for any damage the assistance animal may cause. Further, even assistance animals must behave themselves, meaning they cannot bark until all hours of the night or cause unreasonable disturbances to the other residents. Rules relating to nuisance and damage to property apply just as they apply to any other unit owner.
- Waive any pet deposits or fees. Associations may not require the applicant or resident to pay a deposit for an assistance animal, since assistance animals are not “pets”.
- Waive any breed, size, or weight limitations for pets. Pet restrictions such as these do not apply to assistance animals.
So next time your association receives one of these requests, try to keep these guidelines in mind. When in doubt, talk to the association’s attorney. But be careful, it’s a jungle out there!
Laura Lau Marinelli, Esq., Arnstein & Lehr LLP