Service Animal Regs Provide Guidance for Home Owner Associations and Landlords but Don’t Alter their Obligations

Published on: December 11, 2010

Pet owners will no longer be able to claim that cats, chimpanzees, snakes, gerbils and most other critters are “service animals” that must be allowed to accompany them in public places (shopping malls, grocery stores, theaters, restaurants, and the like) from which animals are otherwise barred.

That is one result – probably the most significant one – of the Department of Justice’s (DOJ’s) newly revised regulations governing the Americans with Disabilities Act (ADA). Among other changes, the new regs define service animals narrowly as dogs (and in some cases, miniature horses) specially trained to provide specific assistance to disabled individuals. They also draw a clear distinction between service animals, which must perform “specific work or tasks” and comfort animals, which provide purely emotional support.

A service animal may help individuals whose disabilities are “psychiatric, sensory, or intellectual” rather than physical, the DOJ explains, for example, “by preventing or interrupting impulsive or destructive behaviors.” But animals that simply make individuals feel better (including guard dogs that make people feel safer) do not qualify as service animals under the revised regulations.

The new regulations will be very significant for public accommodations, which must comply with the ADA. But they will have little direct impact on residential developments, including both condominiums and apartment buildings, which are not subject to that statute. The ADA regs specifically will not affect the obligations of community associations and landlords under the Fair Housing Act, which requires them to offer “reasonable accommodations” to residents with physical or emotional disabilities.

FHA Requirements Unchanged

In fact, the DOJ’s ADA regulations make it clear that the limitations on service animals can’t be used as a basis for denying reasonable accommodation requests under the FHA. The regulations state: “An individual may have the right [under the Fair Housing Act] to have an animal other than a dog in his/her home, if the animal qualifies as a ‘reasonable accommodation’ that is necessary to afford the individual the opportunity to use and enjoy a dwelling, assuming that the use of the animal does not pose a direct threat [to others].” Entities subject to the FHA “must ensure that they apply the reasonable accommodation requirements of the [Fair Housing Act] in determining whether to allow a particular animal needed by a person with a disability. [They] may not use the ADA definition as a justification for reducing their [FHA] obligations,” the DOJ regulations explain.

So condominium owners and apartment tenants may still be able to claim that a variety of pets are “comfort animals,” included among the “reasonable accommodations” that community associations and landlords must offer emotionally disabled residents to allow them to fully enjoy their dwellings.

Requests for service animals are relatively easy to evaluate. The individual’s disability is usually apparent and the assistance the animal provides is usually clear. Not so with requests for comfort animals, which typically address emotional or psychological impairments. The process for evaluating these requests has not changed.

While association boards and landlords clearly should not ask people who are blind or wheelchair-bound to provide proof of their disabilities, they can and should request such verification, from residents who are demanding “comfort animals” that do not comply with a community’s regulations prohibiting or limiting pets.

These inquiries should not be overly intrusive; privacy laws apply. Boards and landlords can’t demand details of an individual’s emotional problems. But they can require documentation from a medical professional confirming that the individual has a disability, explaining the link or “nexus” between that disability and the comfort animal requested, and explaining specifically how the animal will assist the individual in managing life activities that are impaired by his/her disabilities.

Every step of an accommodation request – from the resident’s initial inquiry through the final decision – should be in writing, so there is no question about how it was handled.

A Fine Line

Community associations and rental property owners must walk a fine line as they try to enforce policies restricting pets, while being fair to all residents and avoiding (or trying to avoid) discrimination suits based on the failure to allow reasonable accommodations under the Fair Housing Act.

Although the threat of a discrimination suit is unnerving, and understandably so, it is important to remember that you haven’t discriminated unless and until you deny a requested accommodation. The FHA’s reasonable accommodation framework does not assume that all accommodation requests will be granted, but it does envision a constructive dialogue with disabled residents, and it demands s a good-faith effort to address their needs.

In evaluating a discrimination claim, courts will look for evidence that a board or landlord has seriously considered an accommodation request, had a reasonable basis for denying it (if it was denied) and tried to offer reasonable alternatives. Meeting those standards won’t prevent discrimination suits, but it will provide a strong defense against them.

This general advice applies broadly to requests for comfort animals. Requests for service animals are different. And while the ADA regulations do not apply specifically to condominium and rental housing communities, they may provide some useful guidance to the association boards, landlords and property managers who must deal with these requests.

A Familiar Problem

Under the DOJ’s revised ADA regs, as noted earlier, only dogs (and in some cases, miniature horses) can qualify as service animals. The narrower definition was needed, the DOJ said, because “some individuals have claimed, whether fraudulently or sincerely [albeit, mistakenly], that their animals are service animals covered by the ADA, in order to gain access to hotels, restaurants and other places of public accommodation. The increasing use of wild, exotic, or unusual species, many of which are embraced as service animals, has added to the confusion.”

This will ring a loud and not entirely pleasing bell with board members and association managers who have been told that an owner’s prohibited pet was actually a service animal, even though it wasn’t clear precisely what service a ferret, Chihuahua, boa constrictor or pot-bellied pig was able to provide.

Although only dogs, for the most part, can now be classified as service animals under the ADA regs, simply being a dog is not enough to qualify. Under the DOJ’s revised definition, service animals must be “individually trained to do work or perform tasks….It is the fact that the animal is trained to respond to the individual’s needs that distinguishes the animal as a service animal,” the regulations explain. The regulations don’t specify what type of training or how much animals must receive, nor do they set any minimum standards for the entities providing it. The regulations state only that service animals must be trained to provide a tangible form of assistance that is related directly to the individual’s disability.

Using the DOJ regs as a guide, associations and landlords could adopt rules specifying that their pet restrictions will be waived only for dogs trained as service animals. While condominiums and rental housing developments aren’t required to adopt the ADA’s service animal definition, they also aren’t precluded from doing so. However, some animals (cats, birds, and even ferrets) may create fewer problems than dogs. So the dogs-only definition of service animals may be unnecessarily restrictive and may not be the best approach for all communities.

Proceed with Caution

The DOJ’s requirement that service animals be specially trained to provide a service related to the owner’s disability seems to be a reasonable standard that community associations and rental housing owners may want to adopt. But this is relatively uncharted territory into which boards and landlords should venture cautiously. Courts are likely to use the ADA regulations as a marker for reasonableness, even if they don’t apply to residential developments. Because the DOJ did not establish minimum standards for training, association boards and landlords probably shouldn’t try to do so either.

They might also want to think twice about what kind of evidence to require, if any, of the training an animal has received. The new DOJ regulations specifically prohibit owners of public accommodations from requiring documentation of training as a condition for allowing a service animal to enter the building; they can only what task the animal has been trained to perform, and they can’t even ask that question if the owner’s disability is “readily apparent.”

Nothing in the Fair Housing Act prevents community associations or landlords from adopting rules requiring owners to document the specific training their service animals have received. But given the DOJ’s approach to that issue, it would probably be best to err on the side of requiring too little documentation rather than too much.

If you would like further information, please contact Matt Gaines at mgaines@meeb.com.