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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

HOAs, ADA, and FHA: regulating “Service or Assistance Animals”

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

Williamsburg, Virginia

Susan Tarley

Susan Tarley

Susan Tarley

Susan chairs the firm's common interest community (HOAs and Condos) practice area. She was admitted into the College of Community Association Attorneys (“CCAL”). Susan is one of fewer than 150 attorneys nationwide to be admitted to CCAL, for distinguishing herself through contributions to the evolution or practice of community association law.

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Filed under: General Interest, HOA, HOA litigation, Susan B. Tarley, Unit Owners Association by Susan Tarley

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