January 1, 1900

by Terry A. Kessler

Not everyone likes animals. Therefore, some common interest communities have covenants or rules which prohibit or restrict the ownership of pets. Yet, federal law may supersede such rules under certain circumstances. By understanding the law and knowing what procedures to apply, community associations can avoid problems.

More and more, requests are made to association boards by homeowners or residents for permission to keep pets within their units despite clearly defined "no pet" policies in the governing documents. These requests are frequently based on the premise that the resident requires the pet for his or her mental and/or physical wellbeing. The pet owner contends that he suffers from a disability, and that retention of the pet is crucial to his health in that it alleviates symptoms or conditions. While no one would dispute the necessity of a seeing-eye dog, difficulties arise when a resident seeks to retain a pet to ameliorate a psychological disability.

Fair Housing Act Requires Reasonable Accommodation

The Federal Fair Housing Act (the "Act"), as amended, while prohibiting discrimination and special treatment, requires housing providers to give special treatment to the disabled, if necessary, thus allowing them equal opportunity to enjoy their dwellings. The Act requires that a "reasonable accommodation" be made by the association, where necessary, for a disabled person to enjoy or use his or her dwelling. Failure to provide a reasonable accommodation may result in a complaint to the Department of Housing and Urban Development (HUD). If found in violation of the Act, an association may be subject to substantial penalties, damages and attorneys fees. Therefore, associations should be familiar with the requirements of the Act and what constitutes a reasonable accommodation.

Is the Resident Disabled?

When a request for an exemption from a restriction or for special treatment is made by a resident, the association must first determine if the individual is, in fact, disabled. A disability can be a mental impairment which limits one or more of life’s activities or a physical disability. That the person requesting the accommodation may not appear to be disabled is not a sufficient reason to deny the request. Rather, the association must conduct a reasonable investigation to determine if the person qualifies under federal law.

Second, the association must evaluate whether the requested accommodation is reasonable. The association should consider whether the exemption imposes an undue burden on it or other residents. The obligation to provide a reasonable accommodation does not end even if there is some cost to the association. In some instances, the association may require the individual requesting the accommodation to bear the costs associated with the request. Finally, the board must determine whether the requested accommodation is necessary in order for the individual to use and enjoy his or her dwelling.

Obtaining Reasonable Information

In the case of an application to allow a pet in a pet-restricted community, the individual requesting the accommodation may be required to submit a doctor’s or psychologist’s certification or affidavit which validates the claim and substantiates the need in accordance with the law. This certification should be forwarded to the individual with a request that it be completed by a licensed professional who is treating the person and is willing to certify as to the need for the pet. While it may be easier for a patient to provide a note from a doctor or other health care provider, it is suggested that a note is not sufficient. The association should require a statement which forces the writer to acknowledge the truth of the information being provided.

The form should require the health care provider’s name, address, telephone number, specialty, and license number. This information is necessary to verify that the health care provider is qualified to make the statements on behalf of the individual. In addition, the health care provider should verify that the individual requesting the accommodation is handicapped as defined under the Act and should provide a description of the handicap. Furthermore, the health care provider should certify that the patient has requested a waiver of the association’s policy and describe what the waiver entails. The health care provider also should certify that the waiver of the association’s policy will alleviate or mitigate the described handicap, and that the reasonable accommodation proposed is satisfactory. Finally, the health care provider should be made aware that the information provided will be kept confidential but may be periodically reviewed to verify and revalidate the information supplied.

If a request is made to your association for a waiver of the governing documents to accommodate a disability, legal counsel can provide an appropriate certification to be completed by the health care provider and submitted to the association. Use of such a procedure will help prevent the association from wrongfully denying a reasonable accommodation. Moreover, the certification process assures the membership that exceptions to the governing documents are granted only if required by and consistent with federal law.

Terry A. Kessler is a partner in the Community Association Law Practice Group. Ms. Kessler is actively involved in the New Jersey Chapter of Community Associations Institute (CAI) as a frequent lecturer on association law.