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It’s Raining Cats and Dogs! Requests for Waivers to the No Pet Rule Are Increasingly Being Made to Condominium Associations and Homeowners’ Associations

There are about 9 million Americans with significant physical and sensory impairments, but there are only 10,000-12,000 assistance dogs, of which 7,000 are guide dogs. According to medical professionals, there are profound benefits that animals can provide for persons with physical or mental impairments. Prescription of comfort animals is a growing trend for the care and treatment of numerous medical conditions in the United States, specifically mental illnesses such as post-traumatic stress disorder, traumatic brain injury or emotional disorder, when other remedies have failed. Allowing a service animal and emotional support animal into a no pet building has thus become a hot topic and one, in which, the condominium and homeowner’s associations (“Associations”) can expose themselves to significant liability, as well as compensatory damages, injunctive relief and civil penalties if unfamiliar with the federal, state and city laws which prohibit housing discrimination on the basis of mental disability.

The Fair Housing Act

The Fair Housing Amendments Act of 1988 (“Act”“FHAct” FFHA” “FHA”) extended the protections of Title VIII of the Civil Rights Act of 1968. The FHA prohibits discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap . . . ." 42 U.S.C. §3604(f)(2). Such discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." Id. § 3604(f)(3)(B).

To prove that a housing provider or Association failed to reasonably accommodate a disability, a plaintiff must prove that: (1) he/she suffers from a disability within the meaning of FHA; (2) the defendant knew or reasonably should have known of the disability; (3) the requested accommodation may be necessary to afford "an equal opportunity to use and enjoy the dwelling;" (4) the accommodation is reasonable; and (5) the defendant refused to make the accommodation. Dubois v. Ass'n. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005); U.S. v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997).

The Act applies to most forms of housing, including most rental housing and most  condominiums. There are however, a few exceptions. Dwelling is defined in the Act as any building, structure, or part thereof which is intended for occupancy as a residence by one or more families. The terms "dwelling" and "dwelling units" have been broadly interpreted. They include: nursing homes, group homes for recovering addicts and alcoholics, seasonal facilities (i.e. for migrant workers), residential facilities, mobile homes and trailer parks.  Exceptions to this law include, buildings with four or fewer units where the landlord lives in one of the units, and private owners who do not own more than three single family houses, do not use real estate brokers or agents, and do not use discriminatory advertisements. Hotels and Motels are not considered dwellings under the FHA but are considered places of public accommodation under the Americans with Disabilities Act. Also, private clubs are not included under the Act.

Under the FHA a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of an impairment, or is regarded as having an impairment (regardless of whether that perception is accurate). It is not necessary that the disability be an obvious one.  Disability is defined broadly and has been found to include such conditions as, alcoholism and drug addiction but excludes individuals with current, illegal use of or addiction to a controlled substance. Other specific exemptions, such as transvestitism, are listed in the Act.

To access the full, free ten page report on the Fair Housing Act, co-authored by Katherine C. Tower, JD, MBA, RPLU and Manning & Kass partner Rinat B. Klier Erlich, e-mail Rinat at rke@manningllp.com.

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