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Service Animals in Co-ops / Condos: The Law and What Boards Should Require

W. Alexander Noland, Esq. in Board Operations on September 21, 2012

New York City

Sept. 21, 2012

Some definitions: A service dog is a dog that is individually trained to perform tasks for a person with a physical disability, such as guiding a person who is blind, alerting a person who is deaf, pulling wheelchairs, providing stability while a person is walking, or alerting and protecting a person who is having a seizure. Service dogs are generally thought of as working dogs, not pets.

A companion dog is a dog that provides emotional support to a person with a psychiatric disability, such as depression or post-traumatic stress disorder. As with service dogs, companion dogs are generally thought of as being assistive aids and not pets.

A therapy dog is a dog that is owned by a therapist who uses the dog as a component of therapy for a person with a disability. In the co-op / condo context, a therapy dog would typically be brought into a residence from outside by a homeowner's therapist. Were a therapist to house a therapy dog at his/her residence, or use the therapy dog for patients at his/her residence, that action would be a commercial use which is likely prohibited under the association's governing documents.

The board needs to protect

itself from claims that it is not

enforcing pet restrictions.

As mentioned above, state and federal fair-housing laws apply to service, companion and therapy dogs, and condo / co-op boards must make reasonable accommodations for a physically or psychiatrically disabled homeowner to bring these types of dogs into your building.

This does not mean, however, that these dogs are not subject to reasonable restrictions, nor does it mean that the co-op / condo board can't require proof or validation from the homeowner's medical care provider of the need for such dogs.

For example, it is reasonable for an association to require that

  • all dogs must be in the company and control of their owners while in the common area,
  • all dogs are subject to the association's noise and other nuisance requirements, and
  • an owner is responsible for all damage his/her dog causes to the common area.

An interesting dilemma occurs when a service, companion or therapy dog violates an association's weight restrictions — it can be difficult for an association to prove that a lesser-weight dog will suffice to accommodate a disability (especially when the dog is a companion dog that a homeowner has had for an extensive period of time).

Asking for "Dogumentation"

As noted above, a co-op or condo board of directors can require a homeowner to provide proof that he/she requires a service, companion, or therapy dog. This proof generally consists of a letter from a licensed medical doctor confirming the type of dog, or a specific dog, needed to accommodate a homeowner's disability. In some cases, as when a homeowner is visibly blind or in a wheelchair, the board may not need to request proof of a disability (and it could seem inappropriate to do so).

If a homeowner is unwilling or unable to provide proof of his/her need for a reasonable accommodation, the condo / co-op board could prohibit the dog unless and until proper evidence of a need for a reasonable accommodation is received. That said, the board and management have no right to know what the homeowner's specific disability is, as medical records are generally private (i.e. it would be intrusive to force a homeowner with HIV-related physical disabilities or schizophrenia to disclose their disability to the association).

Assuming the board receives reasonable proof that a homeowner is due a reasonable accommodation, the board should document that reasonable accommodation by board resolution. This documentation is important, as the board needs to protect itself and the co-op / condo from claims that the board is not enforcing specific provisions governing documents or bylaws as they relate to pet restrictions. The board or management can explain to a complaining homeowner that the other homeowner has been granted a reasonable accommodation in accordance with fair housing laws — but the board should not disclose any facts regarding the disabled homeowner's disability.

Next page: When board members themselves request dogs >>

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