Comfort Animals: What Are They and How Should Associations Deal With Them?
Written By: Phaedra J. Howard
The Federal Fair Housing Act (FHA) and the Minnesota Human Rights Act (MHRA) prohibit discrimination against some protected classes, such as disabled individuals. Normally, a residential housing provider is required to make reasonable accommodations in its policies, procedures and practices to afford a disabled individual with an equal opportunity to use and enjoy a dwelling. These acts have been held to apply to community associations.
In the context of pet and animal restrictions, an association cannot prohibit, for example, seeing- eye dogs for residents who are legally blind, even if the dogs would otherwise be restricted or prohibited under the association's Rules and Regulations. However, some individuals have attempted to use these statutes to try to keep pets that would otherwise be prohibited by the association's pet policy, claiming that they are disabled and that having the animal would make them feel better. These animals are often referred to as "comfort animals" because they are generally used to comfort a person claiming to suffer from a disability.
A number of problems arise in the context of comfort animal claims. First, to the extent that these individuals are not truly disabled, they trivialize and undermine laws that are intended to protect those who truly are disabled. Under the FHA, the Americans with Disabilities Act (ADA) and other related statutes, a disability can include mental or psychological conditions, such as some mental illnesses or even chemical dependency, as well as physical conditions that might not be obvious to an observer. An individual may not be legally disabled despite having a note from a doctor. Therefore, it is generally recommended that Associations presented with disability and comfort animal claims obtain a written certification from a doctor to validate the disability, particularly when the disability is not obvious.
Another issue that arises in the context of comfort animals is whether a comfort animal is covered by the reasonable accommodation provisions of the FHA or MHRA. The issue has not yet arisen on the appellate level in Minnesota, but several courts have ruled that, in fact, comfort animals are not protected under the FHA or related state statutes. (In re Kenna Homes Cooperative Corporation, 557 S.E.2d 787 (W.Va. 2001); Dubois v. Association of Apartment Owners of Kalakaua, 453 F.3d 1175 (9th Cir. 2006).
Under the FHA, a service animal must be individually trained and work for the benefit of a disabled person to be considered a reasonable accommodation of that person's disability. A person claiming the need for a service animal as a reasonable accommodation of an alleged disability bears the burden of proving that these requirements have been met.
The Dubois case dealt with an association's bylaws that prohibited animals from the premises except for qualified individuals with disabilities. The association's bylaws further provided that the disabled resident must provide appropriate medical documentation justifying the need for the assistance animal before bringing the animal onto the property. The 9th Circuit Court of Appeals upheld the bylaws as valid and not in violation of the FHA, and further determined that the association did not refuse to make a reasonable accommodation by requesting documentation of the need for the assistance animal.
In the Kenna case, the residents seeking an accommodation from the rule prohibiting animals presented a physician's statement that they suffered from numerous mental and physical ailments and that "it is a medical necessity for [the residents] with their present health ailments to be able to keep their pets to suppress both the physical and mental need for companionship as well as the confinement due to the various illnesses." None of the physician's statements correlated dogs in general or the residents' dogs specifically to the claimed disabilities, nor was any evidence presented that the dogs were a necessary, reasonable accommodation. In that case, the West Virginia Supreme Court held that a landlord or association may require a resident seeking to keep a service animal under the FHA or the related West Virginia statute to provide proof that the animal has been properly trained and certified as a service animal. The Court also held that it was reasonable to require documentation and a second opinion from a physician to substantiate the claimed disability and the need for a service animal.
As both of these cases indicate, it is not a violation of the FHA for an association to require documentation from a resident of an alleged disability AND of the need for a service animal to assist the resident with that disability, including proof that the animal has been specially trained as a service animal, before granting an accommodation for animals that are otherwise prohibited by the association's governing documents. Unless a resident can provide such documentation, the association can and should continue to enforce its governing documents and is not required to permit a resident to keep a comfort animal in violation of those governing documents merely because the resident claims to be disabled and "needs" the animal to feel better. Because individual circumstances can vary, it is advisable that an association confronted with a reasonable accommodation request consult with its attorneys before responding to the request to ensure that the association is in compliance with the FHA and MHRA.
For questions regarding reasonable accommodations and other association concerns, contact our office at 952-941-4005.
