Even though most private residential Associations are not subject to the Americans with Disabilities Act (the “ADA”), the Fair Housing Act (the “FHA”) still applies and protects owners who have service animals. In some cases, the Association has the right to ask the owner for documentation supporting the need for a service animal, but not always…and the case below illustrates how pressing for documentation when the Association is not entitled to it can end up being quite costly for the Association.
In a 2019 case, a homeowner who had a disability that affected her mobility, and experienced acute pain attacks that required her use of a walker, attempted to bring her service dog, a Chihuahua, along with her to the HOA clubhouse. The HOA had a rule that stated “Except for handicap assistance, animals are prohibited in the clubhouse,” and Board members and the property manager barred the owner’s entrance to the clubhouse with her service dog because they asked her for “certification” papers for the service dog, and she did not provide them. Several similar clubhouse access attempts were made by the homeowner, each time with the same result. The HOA issued fines against the owner, and other homeowners took it upon themselves to write anonymous emails to the owner threatening that they should leave the community, and even threatening to kill the dog. The owner eventually moved out of the community (although she still owned the home) because of the harassing behavior of the Board and other neighbors. The owner filed suit against the Association and the property management company, seeking damages under the ADA and FHA for failure to reasonably accommodate her disability.
Although the trial court found in favor of the HOA in that it ruled that the ADA rules on service animals did not apply to their private clubhouse, that was the extent of the rulings that favored the HOA. The court found that FHA applies, and because the owner’s disability was readily apparent and visible (her need for a walker), the HOA was wrong to press her for further documentation of her disability. Further, just the owner’s contention that her dog was specially trained to fetch her walker and her keys for her when they were out of her reach, that training qualified the dog as a “service animal” and there was a clear nexus between the owner’s disability and her disability-related need for the dog. The court awarded compensatory damages of $350,000 to the owner for her pain and suffering (related to her being forced to move out of her home), and $285,000 in punitive damages, mostly fueled by the continual harassment of the owner in the request for documentation to which the HOA was not entitled, and the Board’s failure to discourage the other neighbors from harassing the owner. In addition, the court ordered the HOA and property management company to pay the owner’s attorneys’ fees.
If an owner in your community association claims her dog is a service animal, and you can tell by passing observation that she is physically disabled, tread very lightly. Where a disability is “readily apparent,” the HOA’s right to request documentation of the disability and the service animal’s purported trained skills is very limited. Finally, if you as a Board are aware of neighbors harassing an individual, most especially an individual who is disabled or otherwise from a protected class, you must not turn a blind eye. Doing so will potentially cost your association…big time.
If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.