Homeowner Associations and Emotional Support Animals
Homeowner Associations, (“HOA”) are increasingly coming under attack for not making “reasonable accommodations” for individuals with disabilities. Specifically, HOAs, through their boards, are open for claims of discrimination under the Fair Housing Act (42 U.S.C. §§ 3601 – 3619) (“FHA”) and Colorado Unfair Housing Practices Act (C.R.S. § 24-34-502.2) (“CUHPA”) for not making an exception to their “no dog policy” when an individual with a disability shows a need for a dog in order to live in a unit governed by the HOA.
The Fair Housing Act (42 U.S.C. §§ 3601 – 3619) (“Act”) and the Colorado Unfair Housing Practices Act (C.R.S. § 24-34-502.2) make it illegal to discriminate against individuals with a disability who want to own or rent housing. A disability can be as obvious as a blind individual with a seeing-eye dog or as obscure as an individual who suffers from chronic anxiety.
The range of disabilities derives from the definition of a “disability” under the FHA: “A physical or mental impairment that substantially limits one or more of the major life activities of such individual”. 29 CFR 1630.2 (g). A mental impairment is “[A]ny mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 CFR 1630.2 (h). A “major life activity” is defined as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working”. 29 CFR 1630.2 (i). And “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 29 CFR 1630.2 (j).
If the disability is obvious, a HOA cannot ask for proof of the disability and must allow the person with the disability to have a “service dog” as a “reasonable accommodation” necessary for the disabled person to live in the housing. The definition of a “service dog” is any dog trained to do work or perform tasks for an individual with a disability. Problems rarely arise when the dog is a “service animal” and when they do it is because the animal is dangerous.
Problems occur when the disability is not obvious and the “reasonable accommodation” is to waive enforcement of the HOA “no dog policy” for an “assistance animal” or “emotional support animal.” While there is a difference between “service animals” which are actually trained and “emotional support” animals which are not, both are considered “assistance animals” for purposes of claims of discrimination under the Fair Housing Act (FHA). Assistance animals are usually dogs and some small horses.
The FHA and ADA adopted the broader definition of “assistance animals”, which includes “service dogs”, because these animals provide emotional support, well-being, comfort, or companionship for individuals with disabilities. “Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs” HUD FHEO Notice: FHEO-201-01, April 25, 2013. (Replaced by FHEO 2020-01 on January 28, 2020)
For instance, individuals with chronic anxiety will benefit from an “assistance animal” because it provides “emotional support” in the form of companionship which allows the individual to live in housing the same way as an individual without a disability. Since an “assistance animal” or “emotional support animal” does not need special training most any dog is an “emotional support” animal or “assistance animal” under Federal law. And if supported by “reliable documentation”, the HOA must allow the individual to have the “assistance animal” by making a reasonable accommodation in the form of waiving its “no dog policy.”
60% of all FHA complaints involve the denial of reasonable accommodations and disability access. FHEO 2020-01, p. 4. One reason is that there has been no clear guidance from HUD on what information an HOA may rely on to show a person as a disability and that a service animal would be helpful with the disability.
Unlike individuals with obvious disabilities, HOAs can ask an individual requesting “reasonable accommodation” for “reliable documentation of the disability and the need for a disability-related animal.” “The duty to make a reasonable accommodation does not simply arise from fact that the handicapped person wants such an accommodation made.” Arnal v Aspen View Condominium Association, Inc., 226 F. Supp. 3d 1177, 1186 (D. Colo. 2016). See “Joint Statement of The Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodation under the Fair Housing Act”, issued May 2004 at page 13.
The question becomes what constitutes “reliable documentation”. The Colorado legislature attempted to provides guidance. Colorado law provides only physicians, nurses and mental health providers (“licensees”) are qualified to respond to requests by “patients seeking an assistance animal as a reasonable accommodation in housing”. C.R.S. § 12-36-142, nurses, C.R.S. § 12-38-132.5 and health care providers, C.R.S. § 12-43-226.5. Federal law allows states to supplement the Fair Housing Act. 42 U.S. Code § 3615.
FHEO 2020-01 provides “Guidance on Documentation an Individual’s Need for an Assistance Animal” to which all HOA must refer and direct anyone requesting a “reasonable accommodation” to assess the reliability of proof of a disability and the need for an assistance animal. HUD’s promulgation of this most recent Memo highlights the fact the federal government was not excited about the Colorado legislature stepping in to help clarify the obvious ambiguity of what is “reliable” information. HUD’s own guidance is similar to the Colorado’s guidance but now more persuasive, I guess.
The requirements for the physicians, nurses and mental health care providers are the same. They “shall either: a) Make a written finding regarding whether the patient has a disability and, if a disability is found, a separate finding regarding whether the need for the animal is related to that disability; or b) Make a written finding that there is insufficient information available to make a finding regarding disability or the disability-related need for the animal.” C.R.S. § 12-36-142(1). In order to make a written finding, the “licensee” shall meet with the patient in person; (b) become familiar with the patient and the disability; and (c) is legally and professionally qualified to make the determination.” C.R.S. § 12-36-142(3).
The HOA can inquire into the species but not the breed, size or weight of the assistance animal. U.S. Department of Housing and Urban Development: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD funded Programs, FHEO -2013-10 (“HUD Statement”) at 3. The issue is not the dog but the person with a disability. The HOA cannot collect fees associated with having pets because “emotional support” animals are not considered pets.
The HOA board’s responsibility to uphold its “no dog policy” often creates tension with homeowners because the federal mandate to protect individuals who need a dog because of their disability takes precedence over the majority of homeowners who do not want dogs.
The HOA board’s responsibility to uphold an HOA “no dog policy” requires it to confirm an individual’s disability and verify that the “assistance animal” does assist with the individual’s disability. HOA boards can rely on medical professional and in doing so comply with standards of conduct for non- profit board members to act in “good faith” under Colorado law. C.R.S §7-128-401. The HOA cannot inquire into the details of the disability.
Since a disability under the Act covers a wide range of conditions, which HOA boards are not qualified to assess, they may rely on medical experts to confirm an individual has a disability and separately that an “assistance animal” will help with the disability. In practice, however, a physician may determine there is a disability as defined in the FHA but refers a determination on the need for an “assistance animal” to a mental health provider. Since the Colorado statutes is new it is unclear whether a determination of disability and a determination whether an “assistance animals” will help with the disability can be divided up among medical professionals.
It is important to note that a separate claim for coercion, intimidation, threats or interference may be lodge against a HOA by persons with a disability or by a person trying to help a person with a disability, if fines are levied and an attempt to collect on them has been made. 42 U.S.C. § 3617. This claim can be raised even though a claim for failure to make a “reasonable accommodation” has not been raised. Arnal, 226 F. Supp. 3d. Therefore, it is not advisable to assess fines during the process of obtaining “reliable documentation” of a request for “reasonable accommodation” for an assistance animal.