Recent amendments to the Americans with Disabilities Act (the “ADA”) regulations limit the definition of “service animal” to any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The amendments specify that providing “emotional support, well-being, comfort, or companionship do not constitute work or tasks” under the new definition.
On the other hand, if your situation is not an ADA issue but rather a Fair Housing issue, a recent memo clarifies that the new definition is not applicable to the Fair Housing Act (the “FHA”). The FHA does not contain a specific definition of “service animal.” Under the FHA, animals that provide emotional support have, in certain instances, been recognized as necessary assistance animals as a reasonable accommodation. The FHA permits individuals with disabilities to keep an assistance animal as a reasonable accommodation when there are limitations imposed by the homeowner or condominium association on animals and pets.
A request for a service animal under the FHA does require three factors to be met:
- The requestor must have a disability.
- The requested animal must serve a function directly related to the requestor’s disability.
- The request to have the service animal must be reasonable.
To determine whether the requesting person is disabled, the association may request reliable professional documentation that confirms the disability and that the requested accommodation is necessary. Typically, this is accomplished by a letter from the requestor’s physician that describes and corroborates the disability and describes the function and necessity of the animal.
Difficulties arise when the association believes that the request is a way to get around the pet restrictions in the community. Many times this difficult issue can be addressed by looking at whether the request is reasonable. If an owner is requesting modification of a “no pet policy” to permit the owner to have multiple pets, the association may want to analyze the request further to determine if multiple pets is a reasonable accommodation or if suspending the no pet policy and permitting one animal is the reasonable accommodation.
If the requestor meets the above requirements, the association must permit the assistance animal as an accommodation. The exceptions to such permission are where the assistance animal poses a direct threat to the health and safety of others or if the animal will cause substantial damage to the property of others, and such threats or damage cannot be reduces or eliminated, or where allowing the assistance animal poses an undue financial or administrative burden or fundamentally alters the nature of the housing program or services.
Many of the requests will not provide such difficulty for an association. The requestor will make a reasonable request to have the service animal and will provide appropriate documentation permitting the association to approve the request. For those requests that are difficult or cause concern to the association, the association should consult experienced Virginia homeowner association law firm immediately rather than risk any delays that may result in a Fair Housing complaint.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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