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Lawsuit Against Condo Highlights Complexity of FHA & Assistance Animals

By Lawrence B. Leff, Mark K. Payne, Suzanne M. Leff, Stan V. Jezierski

The Chicago Tribune recently reported on a story where a woman suffering from panic attacks has brought a lawsuit against her condominium association for violation of federal law. While the story wasn't clear on exactly what federal law she is claiming the association violated, there's no doubt that the federal Fair Housing Act ('FHA') is at issue.

Mary Jo Stevens requested, and was granted, an accommodation to keep her toy spaniel (named "Boo") which she describes as her 'psychiatric service' animal to assist in the prevention of frequent panic attacks. The Association, which has a strict 'no pet policy,' has permitted her to keep Boo with the following restrictions: (1) Boo is required to be kept in a pet carrier while in the lobby and laundry rooms; and (2) Ms. Stevens must use a service elevator and side doors as she comes and goes with Boo. 

 

Ms. Stevens contends that these requirements make her 'feel like a second-class resident.' In addition, she claims that carrying Boo in a pet carrier 'defeats his therapeutic purpose . . . since she needs to keep him close to her body to prevent panic attacks. . .' 

 

Regardless of how you feel about the position the Association has taken or the contentions of Ms. Stevens, the Association may be in a precarious position relative to the FHA. Here are some things you should know about the FHA and assistance animals:

 

1. The FHA makes it unlawful for any housing provider (including homeowners' associations) to refuse 'to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford . . . person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.' 
2. The FHA also prohibits housing providers from refusing residency to persons with disabilities, or placing conditions on their residency, because those persons may require reasonable accommodations.
3. The FHA recognizes individuals with 'mental impairments' as having a disability which merits a reasonable accommodation. The FHA defines a person with a disability to include: (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment.
4. The FHA recognizes 'assistance animals' as a reasonable accommodation under appropriate circumstances. In fact, the use of service animals for people with mental or physical disabilities is common.
5. For purposes of the FHA, 'assistance animals' are not required to be dogs or trained as required by the Americans with Disabilities Act ('ADA'). For a more complete discussion of the differences between the FHA and ADA, see our March 14^th blog posting.

The U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued a Joint Statement entitled Reasonable Accommodations Under the Fair Housing Act. The Joint Statement is an excellent overview of the FHA and issues related to reasonable accomodations. 

 

There is no question that the FHA poses unique challenges for HOAs when processing and granting requests for reasonable accommodations. In order to ensure your association does not inadvertently violate federal law, we recommend consulting with legal counsel when addressing these matters.   

Full post as published by Colorado Homeowners Association Law Blog on March 28, 2011 (boomark / email).