Condominiums that don't allow pets must find workable solutions for residents who require medically-prescribed animals. If not, the association can end up in the doghouse — and worse.
The U.S. Department of Housing and Urban Development recently charged a Philadelphia condominium association with violating the Fair Housing Act because of its restrictive pet policies. The charge alleges that The Philadelphian Owners' Association required burdensome and invasive documentation from residents with disabilities before considering their requests for assistance animals and severely limited their access to the building's facilities when accompanied by assistance animals.
The FHA prohibits discrimination in housing on the basis of race, religion, disability and other attributes. Housing providers, which include homeowners and condominium associations, must make reasonable accommodations in rules, policies, practices or services when needed for a person with a mental or physical disability to have equal opportunity to use and enjoy a dwelling. Animals, for the most part, are reasonable accommodations.
The Americans with Disabilities Act, which addresses service animals, applies to public spaces, not to residential spaces like condominiums.
"The FHA is very clear that a reasonable accommodation should be granted when there is a legitimate, documented request that does not cause an undue burden or hardship for the owner or landlord," said Kathleen Clark, executive director of the nonprofit Lawyers' Committee for Better Housing in Chicago.
Animal companionship is known to help people function better and cope with a variety of conditions and disabilities, Clark added.
Associations that are found to discriminate can be ordered to pay damages, fines and attorneys' fees.
Requests increasing. In many no-pet and limited-pet associations, requests for assistance animals appear to be rising, said Chicago-based association attorney Michael C. Kim.
The problem is, not all requests are valid.
"I'm sure there is a legitimate basis in some situations, but, frankly, we also have the impression in other situations it is more a generic desire to have a pet," said Kim.
Sometimes, people move into a condominium, perhaps because of foreclosure or downsizing from a single-family home, and bring along Fido or Fifi without knowing the rules, said association attorney Stuart Fullett of Fullett Rosenlund Anderson PC in Lake Zurich.
"They're not going to get rid of the family dog, so they say it's an assistance animal," he said.
Associations are challenged to sort fact from fiction. If they deny a legitimate request, they risk going to court. If they allow an animal on suspicious pretenses, they undermine their rules and open the door to all sorts of exceptions.
"Sometimes we've seen a residual feeling that someone got away with a so-called accommodation that wasn't essential," said Kim. "It erodes the sense of community."
Associations don't have to roll over and grant every request. They have rights as well as restrictions. They can ask for documentation that indicates the person is disabled and the animal is necessary to relieve the effects of the condition, said Maurice McGough, HUD's Region 5 director of the Office of Fair Housing and Equal Opportunity in Chicago.
They can't ask about the nature and severity of the disability, treatment or prognosis, but they can request verification of the disability from a third party such as a medical professional or peer support group. They can insist that assistance animals be vaccinated and controlled, but they can't specify breeds and sizes, require training classes or relegate animals to freight elevators. Nor can they demand pet deposits, because assistance animals aren't considered pets.
"An assistance animal is analogous to wheelchairs," said McGough. "We've had cases where landlords try to charge extra deposits on wheelchairs because they bang into baseboards and leave marks. Residents are responsible for any damages done after the fact but not upfront."
Under certain conditions, associations can say no: If the accommodation poses a direct threat to other individuals or property, or if it results in unreasonable financial or administrative burden to the association, said McGough.
Fullett, who has encountered forged prescriptions and fake training certificates, said he starts the verification process by asking residents to provide whatever documentation they choose. Those with valid requests tend to overcomply, he said. If the documentation is suspect, he sends a form that permits him to contact the physician for information pertaining to the disability.
"Usually, when we give the form out, the situation disappears," he said.
McGough's advice to avoid expensive legal challenges: Recognize your obligation to make reasonable accommodations under appropriate circumstances, establish a policy for handling accommodation requests, demonstrate that requests are handled in a structured rather than arbitrary manner, keep good records of requests and show that you respond consistently.
At some point, other residents are likely to complain that they bought into a no-pet building and expect it to stay that way. Some may be allergic to animal dander and demand accommodations of their own. It's a tough call, said Fullett.
He compared pet restrictions with leasing amendments: You might move into a building that allows leasing, but the board can change the policy at any time.
"Most likely it will come down to a court determination," he said.
Saturday, November 19, 2011
The Chicago Tribune:
Posted by BA Haller at 9:41 PM