Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #96 • August 2012
In a California Homeowners Association, There are Three Types of Animals…
by Steven S. Weil, Esq.
Introduction
A homeowners association has a “strict” (and strictly enforced) “no pets” policy but a resident requests that an exception be made to permit her to keep a dog. Or, maybe it's a cat. Or a hamster. Must the association provide this “accommodation”? The answer is “maybe” and depends in part on whether the resident is “disabled” and if the animal is a “pet”, or a “service animal” or a “companion animal.” One thing is for sure, the resident's request – whether an owner or a tenant - the request should be treated fairly, respectfully, promptly and properly.
Legal Context and the Effect of Disability Law on CC&R Provisions that Ban Animals or Pets
The most important applicable laws are the federal Fair Housing Amendments Act (FHAA) and the California Fair Employment and Housing Act (FEHA). Both prohibit “disability” discrimination. Under FEHA, it is unlawful to refuse to “make reasonable accommodations in rules, policies, practices or services when… necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” “Rules, policies, practices and services” include governing document provisions that ban animals, or limit the number, type or areas of a development where animals may be maintained. There are other laws that deal with discrimination, including the Americans with Disabilities Act. The “ADA” does not typically apply to “private” homeowners associations that are not open to the general public but its definitions and principles provide guidance in analyzing disability issues.
The Three Types of Animals
There are three types of animals relevant to a disability issue. They are:
Service Animal: This animal is one that provides “a service” to assist an individual who has a disability. Think of these animals as extensions of the individual that helps them perform tasks. Examples include a Seeing Eye dog; dogs that alert those with hearing impairments; who pull wheelchairs or who pick things up. A service animal does not have to be licensed or certified but it does require special training. A service animal should not be considered or analyzed as a “pet.” Under the ADA, a service animal can only be a trained dog or a trained miniature horse. Under other laws, the definition would probably be broader but as a practical matter, dogs are the most likely type of service animal an association will encounter.
Companion Animal: This is an animal (also called an “Emotional Support Animal”) that provides emotional support to someone with a psychiatric disability. This type of animal does not need to be licensed, certified or trained. It also is not a “pet” for purposes of disability law.
Pet: This is an animal kept by a resident. It may be “Man's Best Friend” but it does not perform a legally recognized function necessary for someone who is disabled.
What is “Disability”?
The basic definition of “disability” is a physical or mental condition that substantially limits one or more major life activities. A “major life activity” includes things like walking, speaking, hearing, seeing, washing, learning and working.
A disability that must be accommodated can be physical or mental. Physical disabilities are often easy to see; a resident may be blind, or deaf; confined to a wheelchair; or require a walker for motion and balance. Psychological disorders are less obvious. They include things like depression, irrational fears, an inability to maintain relationships, claustrophobia and bi-polar disorder.
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