That is the question for many condominium and homeowners associations who are left trying to determine if they are in compliance with the law.  

It all starts innocent enough. A new condominium unit owner or homeowner agrees to all the conditions associated with living in a community governed by an association and explicitly (or perhaps implicitly) agrees to "follow the rules." Unfortunately, association directors and officers may not be certain which "rules" apply.

Perhaps there is a "no pets" policy, and the new kid on the block is seen with an animal that seems to have what you would consider a pet. A representative from the association follows up to gently remind the person of the rules prohibiting pets in the community only to find that the individual claims to have a disability and needs the animal. What now? The answer is much more complicated than you might imagine.

While a myriad of laws can potentially arise in this scenario, the two that bear mention are the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Both are federal laws, but they also have state law analogues that make staying in compliance all the more difficult.

The ADA applies to places that are defined under the statute as "places of public accommodation," and before you reply that your community is not such a place, you may want to check again. Public accommodations can include a seemingly private community, or a subpart thereof, if that community has a public golf course, offers public services (i.e. transportation that is not limited to its residents), has a leasing office, or operates a recreational facility that is open to the public.  42 U.S. Code § 12181(7) provides some assistance as to the definitions of public accommodations, but you should talk with an attorney before you decide that you don't - or do - meet one of the enumerated types of public accommodations.

Once it is determined that the community has some aspect that is considered to be a public accommodation, the ADA further requires that the individual have a disability. 42 U.S. Code § 12102 defines “disability” as

"(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; 

 (B) a record of such an impairment; or 

 (C) being regarded as having such an impairment..."

 Major life activities are further defined, but like all good laws, are not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The term major bodily functions  as defined by law includes "the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

Now that we have crossed the hurdle of determining whether or not the person qualifies under the ADA, we still need to consider the animal. Under the ADA, only a dog qualifies as a "service animal," though there is a separate provision for a miniature horse. The U.S. Department of Justice (USDOJ) released a publication in July of 2011 wherein they explained that a "service animal is a dog that is individually trained to do work or perform tasks for a person with a disability." This can be relatively easy to determine at times. For example, if you were to see a person who clearly appeared to be blind - to the best of your personal judgment - and that person was walking with a dog, it is nearly an absolute certainty that the dog is a service animal. In fact, if there are enough clues that the person has a disability, the person's right to privacy along with the mandates from the ADA preclude questioning the individual, which is fair and appropriate. It is more difficult when the disability is not so obvious.

In the same USDOJ publication noted earlier, direction is provided on what questions can be posed to a person who may have a service animal. According to the DOJ,

"When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task." 

Thus, security guards or other agents of the association need to be cautious when inquiring about an animal that may otherwise appear as a common pet

Once the possibilities are narrowed down and it is determined that the person likely (or it is known) has a disability and the dog is a service animal, a reasonable accommodation needs to be made under the ADA. An example of a reasonable accommodation under the auspices of this brief article means that the service animal is to be allowed where a "pet" would otherwise not be allowed. The association doesn't have to eliminate the entire "no pets" policy; however, a reasonable accommodation would likely be appropriate.

The owner of the service animal must still obey other laws, like a local ordinance requiring the dog to be on a leash and to pick up waste after the animal defecates. The dog is not allowed to be unduly disruptive to others (i.e. barks incessantly night and day or lunges at other people in an aggressive manner).

If all this seems daunting, remember that the law was enacted to provide equal access and enjoyment of public accommodations to persons with disabilities. Unfortunately, unintended consequences sometimes arise from otherwise well-intentioned laws.  If the association is unsure of the appropriate course of action, the safest approach is to speak with an attorney who has knowledge in this particular area of law. 

Our next article will present considerations under the Fair Housing Act, including the differentiation between a "service animal" under the ADA as opposed to an "assistance animal" under the FHA.