Comfort Frogs, Emotional Assistance Monkeys, and Therapy Chickens:

What Do You Do When Someone Requests One?

I once heard a colleague say “there is no such thing as a pet-free community anymore”, and I must admit, he was absolutely right! Even when communities’ governing documents prohibit pets and animals, fair housing laws step in to protect disabled individuals and require associations to bend the rules in order to allow such prohibited animals in the community.

Both Colorado and federal laws establish “protected classes” of people making it unlawful to treat persons differently based on their protected class. Protected classes include, but are not limited to, race, color, religion, sex, disability, familial status and national origin.

Individuals requesting assistance/support animals typically fall into the protected class based on disability. A “disability” is defined by statute as:

A physical or mental impairment that substantially limits one or more of a person’s major life activities, a record of having such an impairment, or being regarded as having such an impairment.

Although “major life activities” is not defined by statute, courts generally agree this term includes caring for one’s self, performing manual tasks, seeing, hearing, speaking, and breathing. One of the most common forms of discrimination based on disability occurs when associations refuse to allow disabled persons to keep an assistance/support animal.

Why would associations not allow disabled individuals to keep assistance or comfort animals?

The reasons are many, but for the most part, they boil down to situations where boards cannot readily see a disability and don’t believe the requesting individual truly needs the animal. In other words, boards believe the requesting individual is lying and trying to get around the rules or covenants with respect to pets.

Ever heard of the emotional assistance iguana or therapy snake? Neither have many board members, which makes it very difficult for them to believe these requests are legitimate. Given the current trends, it is highly likely that you, as a community association manager (“CAM”), will get a request for one these at least once in your career.

So what do you do when you or the board receive a request to allow the emotional assistance turkey in your community?

Here are steps to be taken by CAMs/boards when receiving requests for assistance or support animals.

Establish the Disability

Do NOT assume the requesting party is not disabled because you cannot see the disability; disabilities can be obvious or not obvious.

Obvious Disability

An obvious disability is easily observed and includes situations where the requesting individual is in a wheelchair, missing limb(s), or has any other visible mental or physical impairment. If the disability is obvious CAMs/boards may not inquire as to the nature and severity of such individual’s disability.

Not Obvious Disability

If the disability is not obvious the CAM/board may request reliable disability-related information that is:

  • Necessary to verify the person meets the definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities);
  • From the person’s health care provider (not necessarily a doctor);
  • Describes the needed accommodation, and
  • Shows the relationship between the person’s disability and the need for the requested accommodation.

Once the CAM/board obtains written verification from a health care provider, it should consider that person disabled (even if the CAM/board believes the medical information is false) and all inquiries about the disability must stop.

Once Disability Established

Once the disability and need for the assistance/support animal is established, the association must allow the disabled individual to keep the animal in question even if the board does not believe the individual is truly disabled. This notwithstanding, the request may be denied when:

There is no disability-related need for the animal.

    • For example, an association can deny a disabled person’s request to keep an assistance turtle if the only disability the person suffers from is blindness. A turtle cannot assist a blind person to find his/her way. On the other hand, if the blind person also suffers from depression (which is a disability) and needs the turtle for emotional support, an association would likely have to allow the turtle.

Providing the accommodation is not reasonable – i.e., it imposes an undue financial and administrative burden on the association or it fundamentally alters the nature of the association's operations.

    • Generally speaking, it is very difficult to use this exception when it comes to assistance and support animals.

In the meantime, to protect yourself and your community from liability exposure when it comes to assistance/support animals, consider the following safeguards and practice pointers.

Always consult with an attorney

Any requests for assistance/support animals or other accommodations and/or modification are wrought with liability exposure for associations.

Adopt a reasonable disability accommodation and modification policy

Adopting a policy setting forth an association’s process for providing reasonable accommodations and modifications will assist the board to lawfully and uniformly address all reasonable accommodation or modification requests, including requests for assistance/support.

The policy, at a minimum, must cover the following:

    • How disabled individuals may request a reasonable accommodation or modification (i.e., form for request)
    • The guidelines that the board will consider in evaluating the request
    • That the board will respond within a reasonable time of receiving the complete request.
    • A standard form for use in verifying disabilities and the need for the accommodation, where the disability is not readily apparent.
    • Do not request verification if the disability is obvious and it is obvious how the requested modification will afford the individual equal opportunity to use and enjoyment of home or community.
    • The request for an assistance/support animal need not come from an owner or the person in need of the animal. It can come from someone making the request on behalf of the disabled individual.
    • The disable individual need not be an owner or resident of the community; it can be a family member or guest who requires the assistance/support animal.
    • The health care provider completing the written verification of disability is not required to be a physician, physician’s assistant, or R.N.
    • Respond to requests in writing in a timely manner.
    • Do not deny a request for assistance/support animal because of a related or unrelated violation at time of request. Thoroughly document the reason for any denial.

Overall, the support/assistance animal area of law is a litigious and complicated one, which requires boards and CAMs alike to take extreme precaution when it comes to requests for such animals. Although this article sets forth a rough outline of steps to take when a request is received, it by no means, replaces the need to consult with legal counsel each and every time. Remember, every situation and set of facts is different and contains different nuances, so each request must be reviewed independently of others in order to figure out how best to address it.

Elina B. Gilbert Esq.

About the author

Elina enjoys variety – and community association law provides exactly that. Her knowledge and years of experience in community association law has allowed Elina to provide practical, economical, and creative solutions to clients. She has a knack for explaining complex documents and legal issues in a way, whether in person, by phone, in a letter, or in front of a classroom, that removes the legalese and allows board members and managers to understand the issue at hand.