Why Condominium Boards Should Scrutinize Owners’ “Prescription Pets”

Service Animals If there is one word that describes the reaction of board members asked to allow “comfort” or “emotional support” animals in communities that otherwise prohibit pets, it is probably, “Ugh!” This is not because association boards are unsympathetic to the needs of residents who have disabilities requiring the assistance comfort animals can provide; it is because it is often difficult to distinguish between the requests of owners who legitimately need pets, and those who simply want pets and will do almost anything – including claiming disabilities they don’t have – in order to keep them.

Owners whose requests are denied often sue boards for failing to provide the “reasonable accommodations” federal and state fair housing laws require for residents with physical or mental disabilities. Fear of that litigation and its attendant costs has led many boards to “just say yes” to most comfort animal requests, assuming that judges and hearing officers are more likely to favor owners claiming disabilities than associations denying them the pets they say they need.

Owners requesting a comfort animal or an accommodation of any kind under the Fair Housing Act must first demonstrate that they have a disability. If the disability is apparent and the request is obviously related to the disability – a guide dog for someone who is blind, for example – the discussion must end there. The association’s governing board can’t demand any additional information and must approve the request. But if the disability is not apparent, as is the case for many if not most emotional disabilities, the board can require the owner to provide reasonable documentation (usually in the form of a letter from a physician or therapist) verifying the disability, explaining that the comfort animal requested is necessary, and confirming that the tasks the animal performs specifically address the disability claimed.

It is in this area (training) that the courts are becoming a bit more demanding. In a 2002 case, a California court ordered a community association to pay $12,500 in damages to owners who had been forced to relinquish a dog they said helped them deal with their depression. The court ruled that it was “the innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans, made it therapeutic….” But several other courts in different jurisdictions have concluded that it takes more than a nose, a tail and a friendly disposition to qualify a dog as a service or comfort animal.

The West Virginia Supreme court held in a 2001 case that, as is the case for conventional service animals, “certainly some type of training is necessary to transform a pet into a service animal” for individuals with emotional disabilities. A Hawaii court ruled similarly in a 2003 case (Prindable v. Association of Apartment Owners of 2987 Kalakawa) that an animal must be “particularly suited to ameliorate the unique problems of the mentally disabled.”

While the “innate qualities” of dogs doubtless provide comfort and support to their owners, this court acknowledged, accepting that standard makes every dog, by definition, a service animal and “every person with a handicap or illness that caused or brought about feelings of depression, anxiety, or low self-esteem would be entitled to the dog of their choice, without individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for those animals.”

In a more recent case, the Washington Court of Appeals agreed that there must be “evidence of individual training that sets the animal apart from the ordinary pet.” What is required, this court said, is “something more than the unsupported averments of individual training” and ‘slight anecdotal evidence” the Prindable court accepted. “An affidavit detailing [the dog’s] training, a declaration from [the dog’s] veterinarian or a certificate from any licensed training school” should suffice, the court suggested.

In formulating the revised ADA regulations, the Department of Justice declined to define the training service animals must receive to meet the requirement that they be “individually trained.”

“Because of the variety of individual training that a service animal can receive – from formal licensing at an academy to individual training on how to respond to the onset of medical conditions….the Department is not inclined to establish a standard that all service animals must meet,” the DOJ explained.

But the idea that comfort animals, like service animals, must have some sort of relevant training seems fairly well-established as a precept boards can use in their review of accommodation requests.

Owners with disabilities have the right to demand comfort or service animals, but condominium boards have the right – and the responsibility – to require proof of the disability owners are claiming and to ask reasonable questions about the pets they are demanding. Precisely what does little Peaches the Teacup Yorkie do to help cope with panic attacks and how has she been trained to do it? While boards can’t reject legitimate, documented requests for comfort animals, they can attach reasonable conditions to the waiver of pet restrictions. An owner may need a comfort animal to cope with depression and anxiety, but does that owner need two dogs, a cat and a bird? Wouldn’t one of those animals suffice? Similarly, the board can ask the owner insisting on a Pit Bull or a German Shepherd to explain why a smaller dog, with a less troubling reputation, couldn’t provide the comfort the owner needs.

What is significant is the way in which the boards handle the accommodation requests. The most successful boards enter into an open and constructive dialogue with owners seeking accommodations, keep the dialogue open throughout the review process, and attempt to negotiate agreements that recognize the rights of disabled owners while protecting the interests of the association and other residents of the community.

An open and continuing dialogue is crucial. Even if the board rejects an accommodation request initially, it should invite the owner to submit additional information that might support the owner’s claim.

To make sure they handle accommodation requests appropriately, associations should have a formal policy in place, they should follow that policy precisely, and they should document every step in their review process. If the owner seeking the accommodation currently has a pet, in violation of the association’s rules, it is usually best to allow the pet to remain pending a final decision by a court or a hearing officer. Otherwise, if the owner prevails, the association risks liability for emotional distress or other damages the owner might claim he/she suffered because of the separation from their pet. The board should also suspend any fines during the review and negotiation process.

Many boards prefer to avoid these fights altogether. Why go through the effort, angst and expense of challenging comfort animal requests, they ask, when it is easier and less costly to simply approve them?

There are two reasons: First, even if the disabled owner prevails and keeps the pet at issue, the board may be able to impose reasonable restrictions on the breed and size of the animal and its presence in the community. Equally important, requiring owners to make their case for waiving the community’s pet restrictions will convey an important message both to owners who want pets, and might otherwise be tempted to ignore the association’s rules, and to owners who support the pet restrictions, who will have little basis for complaining that the board is failing to enforce them.

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