Many homeowners associations have strict “no pets” policies. But emotional animals and service animals are not pets. They are animals that provide crucial assistance to homeowners with disabilities — and as such, are protected by federal laws. To ensure legal compliance, here’s what you need to know about the HOA and emotional support animals or service animals.
Emotional support animals and service animals both provide valuable service to individuals with disabilities. Under federal law, though, these two terms are not the same — and thus, should not be interchanged. For a better understanding, here are the legal definitions of service animals and emotional support animals.
As per the Americans with Disabilities Act of 1990 (ADA), a service animal is any dog that has been trained to carry out tasks or work to assist a person with a disability. This disability can be sensory, intellectual, psychiatric, physical, or mental.
A service animal’s training should be directly related to an individual’s disability. For instance, a psychiatric assistance dog can assist an individual by reminding him/her to take his/her medications. Meanwhile, a mobility assistance dog can help a physically-disabled person by pulling his/her wheelchair. There are also other types of service animals including a guide dog, hearing dog, sensory dog, seizure response dog, allergy detection dog, autism service dog, and diabetic alert dog.
Service animals refer to trained dogs. Other animals, regardless of whether they have been trained or not, do not qualify as service animals. Recently, though, ADA regulations have been amended to include miniature horses as service animals. Nevertheless, emotional support animals are not considered service animals.
Emotional support animals are also known as comfort animals or therapy dogs. Unlike service animals, emotional support animals do not require training to be classified as such. Their main purpose is to provide comfort and companionship. They also help relieve loneliness, depression, anxiety, and other symptoms or effects of the person’s disability. According to the ADA, emotional support animals do not have the same rights as service animals.
According to the ADA, service animals should be allowed to accompany persons with disabilities in most places including the different facilities within a homeowners association. But does that mean that HOAs can prohibit emotional support animals? Not quite. Another very important law, called the Fair Housing Act of 1968 (FHA), provides legal grounds for emotional support animals in HOAs.
The FHA states that persons with disabilities have a right to request reasonable accommodations. The goal of reasonable accommodation is to provide a person with a disability the opportunity to enjoy and use a dwelling or common area the same way that those without disabilities can. As such, emotional support animals can be reasonable accommodations for homeowners with disabilities.
Since the term “reasonable” can be open to interpretation, though, the FHA has released new guidelines that will prevent conflicts between HOAs and homeowners when it comes to emotional support animals. For homeowners with disabilities that are not readily observable, HOAs can ask for documentation to establish a need for an emotional service animal.
The FHA also provides some clarity on which animals can be considered as emotional support animals. It will be easy to establish a need for a reasonable accommodation if the request for an ESA pertains to domesticated animals such as dogs, cats, rabbits, turtles, hamsters, and birds. However, with non-domesticated animals such as reptiles, barnyard animals, and monkeys, the burden lies on the homeowner to justify a need for such an emotional support animal.
Because federal laws state that HOAs can’t discriminate against homeowners who need service animals, the HOA cannot deny their requests. The same rule applies even if the HOA has a strict “no pets” policy in its governing documents. After all, federal laws take precedence over HOA documents.
As for emotional support animals, since the definition varies between the ADA and the FHA, the HOA might not know how to act when faced with a request for it. Some HOAs might worry that homeowners are simply trying to pass off their pets as emotional support animals. However, according to the U.S. Department of Housing and Urban Development (HUD), which oversees the FHA, it’s in the association’s best interest to simply allow the animal in the HOA rather than deny the request of someone who really needs it.
There are some special cases, though, when an association can deny service animals in HOA communities. This applies to service animals deemed too aggressive or those that destroy community property even after all measures are taken. The HOA may also deny a service animal if there’s irrefutable evidence against the homeowner’s need for it.
It’s a good idea to develop a standard policy when it comes to service animal and emotional support animal requests in your HOA. For instance, the association could create a service animal and emotional support animal registration form. And when a homeowner applies for such a request, the HOA can ask for supporting documentation or proof. This can be a determination of disability from a government agency, disability benefits from social service, or certification from a medical professional.
It’s important to be careful when requesting documentation, though. The HOA does not need to ask for documentation and more importantly, should not ask for specific details, when the disability is readily observable — such as with blindness, deafness, mobility impairments, and intellectual impairments. The HOA also has no right to gain access to the person’s medical records. Furthermore, the HOA shouldn’t delay the request to an unreasonable extent in an attempt to punish the requesting party.
While service animals and emotional support animals are typically in good behavior, the HOA can impose rules that ensure that they do not pose any danger to the other residents. The owner must always stay in control of their service animal or emotional support animal.
Owners should also take responsibility for any harm or damage caused by their animals. HOAs can ask the homeowners to keep their animals on a leash at all times and clean up after them.
Of course, the HOA may be tempted to create or enforce rules that are too unreasonable or downright discriminatory. For instance, an HOA may want to charge a fee to those who own service animals or emotional support animals. The association might request a security deposit of some sort. These monetary rules are off-limits so avoid enacting them.
Other unreasonable rules include prohibiting the animals from entering certain areas in the community, as well as restricting the breed, size, or weight of the animals in your HOA. Keep in mind that discriminatory rules can result in unwanted legal action. The best course of action prior to creating or amending rules is to consult with your HOA attorney. This way, you can cover all your bases when it comes to service animals and emotional support animals.
Conflicts can happen between associations and residents when the HOA suspects a request is simply stepping around HOA pet restrictions. The best way to address this concern is by discussing if the request is a reasonable one.
For example, if your association doesn’t normally admit pets at all into the community and the requestor is asking to have several pets, you’ll want to look further into whether all those animals are actually assisting the person.
However, you also do not want to reject the person should they have an actual need for a service animal or emotional support animal. A possible compromise may be to permit one animal.
In most cases, though, requests will not be too much of a hassle for your association. Homeowners with disabilities will make the request and provide the necessary documentation so you can approve their request. However, for issues such as those difficult requests, a homeowners association management company can help with handling them.
Rather, the focus of your HOA should be finding a way to meet the needs of homeowners with disabilities, as well as the needs of the entire community. When it comes to HOA and emotional support animals or service animals, it’s always better to follow the rule of the law. This way, you can ensure that no legal troubles befall your association. For ultimate compliance, you can always consult with an attorney to come up with the best strategy for property approving or denying homeowners’ service animal requests.
For self-managed associations that need further guidance on HOA and ESA animals, consider the advantages of hiring an HOA management company. To know what options are available, feel free to browse the HOA Management online directory for the best HOA management companies and vendor services in your area!