01/29/2020

Written by: Gregg A. Shivers, Esq. 

SERVICE AND SUPPORT ANIMALS - WHEN DOES A COMMUNITY ASSOCIATION HAVE TO GRANT AN EXCEPTION TO ASSOCIATION RULES CONCERNING PETS.

The Department of Housing and Urban Development has issued helpful guidelines that will assist a community association in evaluating requests for a reasonable accommodation. Community managers and board members should read the entire document which can be found here.

One of the most important parts of this guidance is that mail-order certificates are not acceptable proof of the need for an accommodation.

In addition, when addressing a fair housing issue in New Jersey, it is important to realize that in addition to the Fair Housing Act, the state also has an anti-discrimination law. While the New Jersey Law Against Discrimination echoes much of the HUD requirements, it takes a broader view of what constitutes a disability, so any issues should be referred to counsel for review.

The following are some important points:

1. There are significant financial penalties for community associations who deny a reasonable accommodation to a disabled person who is found to be entitled to the accommodation.
2. A “service animal” is different than a “support animal” and the approach to deciding whether to grant a reasonable accommodation is different for each.
3. A “service animal” is a dog specifically trained to perform tasks for the benefit of a disabled person. Note that it can only be a dog except in very rare circumstances. The only questions you can ask the person seeking an accommodation are, “is the animal required because of a disability?” AND “what task has the animal been trained to perform?” You cannot ask about details of the disability and you cannot request documentation proving the specific disability. (Although not addressed in the bulletin, you should be able to ask for documentation demonstrating that the animal has been specifically trained to perform the task, but with the exception of service animals to assist sight and hearing impaired persons, training need not be performed by a professional agency.) Tread very carefully with a service animal accommodation request. These usually involve obvious and serious disabilities so are rarely an issue.
4. A “support animal” can be any kind of animal that is normally kept in households (examples given are dogs, cats, small birds, rabbit, hamster, fish or turtle). For any other type of animal (barnyard animal, monkey, reptiles other than turtles, etc.) the disabled person has a burden of demonstrating why a traditional household pet cannot provide the needed support.
5. If the person seeking the accommodation for a support animal does not have an observable disability (blindness, deafness, mobility limitations, etc.) then the association may request information that reasonably supports that the person has a disability. A disability is a physical or mental impairment that substantially limits one or more major life activities (seeing, hearing, walking, talking, breathing, performing manual tasks, caring for one’s self, learning and working). Acceptable information to support the claim of a disability includes a determination of a disability by a federal or state agency, receipt of disability benefits, eligibility for housing benefits based on a disability or information from a health care professional. Note - a certificate from a website does not constitute sufficient proof of a disability. The healthcare professional must have personal knowledge of the patient and so state in the document submitted.
6. The association is not entitled to details of the diagnosis nor specific records of treatment. The health care provider supporting the request for an accommodation must represent that:  a.) he/she has personal knowledge of the individual, b.) the patient has a disability as defined above, c.) that  the disability substantially limits at least one major life activity and d.) the animal does work, performs tasks, or provides therapeutic emotional support with respect to the individual’s disability.
7. A request for an accommodation does not need to be in writing.
8. The association may not charge a fee to process an accommodation request and may not impose fees for the support animal (even where there are fees for other pets).
9. The association may not limit the size or breed of animal unless there is a reasonable basis to believe that the animal poses a direct threat to the community members.
10. A disabled person can make a request for an accommodation before or after acquiring the assistance of a support animal. A request can even be made after the association has taken action against the person for a pet violation but “the timing of such a request may create an inference of bad faith on the part of the person seeking the accommodation”.
11. It is important to keep records concerning all requests for accommodations.
12. Information about a person’s disability is confidential and the Board cannot share that information with others - it is not part of the books and records of the association which members have a right to inspect.
13. Addiction caused by the illegal use of a controlled substance does NOT constitute a disability.
14. The disabled person is responsible for the animal’s conduct and clean up.
15. If the Board determines that the accommodation being sought is not reasonable, the association should engage in a discussion with the disabled person to find alternative accommodations that would be reasonable.

This alert is not intended to be a comprehensive summary of the 16-page bulletin from HUD. These are just some of the important points made in the bulletin. If you have questions or need additional guidance on a particular case in your community, please give us a call.