A recent case in Pennsylvania, U.S. v. The Dorchester Owners Association, No. 20-1396 (E.D. Penn. Jan. 25, 2023), ruled that The Dorchester Owners Association (“Association”) engaged in discrimination in violation of the Fair Housing Act (“FHA”) in connection with requests for assistance animals.
Although the Association’s governing documents prohibited pets, the Association adopted several different rules in evaluating requests for assistance animals in an attempt to comply with the FHA. The Association’s rules included height and weight restrictions, muzzling on common areas, and insurance requirements to allow the animals to use the Association elevator. The court found that the rules were in violation of the FHA; and, that the Association unreasonably delayed in rendering decisions regarding requests assistance animals.
Assistance animals are becoming much more common, and therefore, community associations need to be aware of, and up to date, on applicable FHA rules regarding the same. The FHA prohibits a community association from discriminating against a person in providing services or facilities in connection with a sale or rental because of disability. Prohibited discrimination includes (1) a refusal to make reasonable accommodations; and (2) a refusal to permit reasonable modifications.
The U.S. Department of Housing and Urban Development (“HUD”) recently issued a notice to assist housing providers and other entities which are subject to the FHA (including most community associations) in assessing a reasonable accommodation request for a service animal. The notice is fairly lengthy and detailed, and if you receive a reasonable accommodation request, you are encouraged to IMMEDIATELY contact (as noted in the above-referenced case, unreasonable delays may result in a discrimination claim) your community association lawyer. However, below I have provided some important highlights from the HUD notice:
• It is important to remember that assistance animals are not pets!
• There are generally two categories of assistance animals: (1) a service animal; and (2) another trained or untrained animal that does work, performs tasks, provides assistance, and/or provides therapeutic emotional support for individuals with disabilities (referred to as a “support animal”)
• It is important to distinguish between obvious and known disabilities versus non-obvious and unknown disabilities
• Once you distinguish between the type of assistance animal and type of disability (as discussed above) it will inform what types of information you can/cannot request from the individual making the reasonable accommodation request
• If the animal is not a common household pet, additional analysis and information is likely required
• DO NOT attempt to require a health care professional to use a specific form, provide notarized statements and/or statements under penalty of perjury, or provide an individual’s diagnosis or other detailed information about a person’s physical or mental impairments
Finally, in the event that your community association opts adopt a policy and/or rules regarding FHA requests, please consult with your community association lawyer to ensure that such policies and/or rules comply with the FHA.