April 23, 2020| Lester Yat
Walking down the hall of your building, you hear what is undoubtedly the barking of a dog. It can’t be. You live in a “no-pets-allowed” building.
A complaint to the property manager uncovers the answer to the riddle: When is a puppy not a pet?
Residents and managers are facing this question with increasing frequency — and there are several answers to it. The canine (or cat, or even the snake and pot-bellied pig), may actually be a service animal, a therapy animal or an emotional support animal.
And a “no pet” rule does not make the building a “no animal” zone.
While they may look alike, there are differences among these animals in terms of their purpose, training, and certification. Service animals (most often, dogs), provide their owners with assistance in performing everyday living tasks. Therapy animals (of any legal species) provide psychological or physiological benefits to their owners. Emotional support animals (of any legal species) exert a positive effect on a personal with a disability, such as alleviating depression.
Managers faced with the sudden appearance of canine, feline and other non-human residents are advised to tread carefully when dealing with the issue. The Americans with Disabilities Act (ADA) provides protections for service animals. The Federal Fair Housing Act (FHA) also supersedes building rules — and the government says communities must make “reasonable accommodations” for residents who need these animals in their lives.
There is however, no nationally-recognized certifying agency or certification for these animals — although managers have received documents from internet-based doctors or agencies providing “proof” of an animal’s need, often without having seen or spoken to the animal’s owner. As baby boomers age, the number of requests, particularly for emotional support or comfort animals, seems to be on the rise.
“Federal regulations allow for a broad range of individuals to provide the verification,” according to the National Apartment Association (NAA). “These individuals include a physician, psychiatrist, social worker or other mental health professional,” the NAA says in “A Practical Guide to Reasonable Accommodation Requests,” a Toolkit published for its members.
Denying a request for accommodation is not a step to be taken lightly. The US Housing and Urban Development Department says a request can be denied if it would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services; 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 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. The NAA cautions, however, that a determination that “an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct – not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.”
And since service or comfort animals are not pets, buildings can no require pet fees or pet deposits from their owners, and the law prohibits breed, size and weight limitations.
“Processing these requests can be problematic for boards but managers can encourage associations to establish procedures that work for both pet owners and non-owners by following a few basic steps,” the Community Associations Institute (CAI) advises. Those steps include creating a list of required documents — such as doctor’s statements —for requesting accommodation; taking every request seriously; investigate all requests using the same criteria; and making every effort to reach a reasonable accommodation.
While the existence of animals in what home-buyers thought would be an animal-free environment may lead to complaints or questions, residents and managers have to be careful about discussing individual cases with other residents. “An owner should not disclose the personal information of one resident to another resident,” the NAA cautions.
At the same time, the protections provided by the ADA and Fair Housing Act do not mean that there are absolutely no controls on these animals. “Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals,” the NAA says — but “an owner may require a resident to sign a form that informs the resident of policies applicable to all animals on the property, such as: the resident must be responsible for damages caused by the animal; the resident agrees that the animal will not disturb other residents; the resident agrees to dispose of all waste and observe all leash (or running at large) laws; and the resident must properly vaccinate the animal in accordance with applicable state laws.”
For more information on the issue, visit the U.S. Housing and Urban Development (www.portal.hud.gov), Community Associations Institute (www.caionline.org) or the National Apartment Association (www.naahq.org) — and should seek advice of their attorneys when questions arise. It may be time, too, for an update of building documents, adjusting them as needed to conform with these ADA and FHA rules.