Animals are a significant part of any community, whether that community is made up of several acre lots that allow livestock, or a high rise condominium that does not allow any pets. The governing documents of many associations impose restrictions on what kinds of pets and animals a homeowner may keep. These restrictions are often spelled out in the association’s Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”). An association may generally restrict the type, size, and number of pets a homeowner may keep.
An association generally cannot apply pet restrictions in its governing documents to support animals. Support animals are often kept by individuals suffering from a disability.
The Arizona Fair Housing Act (“FHA”) A.R.S. § 41-1491, et seq. closely tracks the Federal Fair Housing Act. The Arizona FHA requires an association to make reasonable accommodations in its rules, policies, practices or services if the accommodations are necessary to afford a homeowner an equal opportunity to use and enjoy their dwelling. (A.R.S. § 41-1491.19(D)(2)). An association must waive its pet restrictions if: (1) the resident has a disability, (2) the requested accommodation is necessary for the unit owner’s use and enjoyment of the home, and (3) the requested accommodation is reasonable.
If an association refuses a homeowners request for an accommodation, that homeowner may file a discrimination complaint against the association. A homeowner can file a complaint at no expense; even if it is later proven that no discrimination occurred. If a homeowner files a complaint against your association for discrimination, the association should immediately consult with its attorney. One way to avoid and/or defend complaints against the association is to have a policy in place on how accommodation requests are to be administered. Associations are allowed to make reasonable requests into whether the resident is disabled if the disability is not readily apparent.
People with disabilities may own many kinds of animals for emotional support. Miniature horses, potbellied pigs, gerbils, ferrets and birds A support animal is distinguishable from a pet. A support animal typically provides a service or benefit to its owner. To qualify as a support animal the animal must be: 1) individually trained, and (2) work for the benefit of a disabled individual. There is no requirement that the animal be certified as a support animal. The training may have even been done by the disabled individual.
When in doubt, the Board of Directors should discuss all requests for accommodations its attorney. This discussion should happen before the association refuses any request for an accommodation.
With respect to pets (as opposed to service animals), the restrictions set forth in the Declaration are enforceable through its enforcement policy just as any other violation. Additionally, most municipalities have laws and zoning restrictions concerning such things as the number and types of permitted animal, barking or biting dogs, and the sale of animals. The municipality may be able to assist an association when the association’s documents have weak or absent pet provisions in its documents. Even in cases where the association has a strong pet policy in place, action by the municipality is often quicker and more effective than enforcement by an association.
Associations should work with its community manager and attorney to develop and implement effective policies for the management of pets in the community as well as the administration of requests for accommodation from disabled individuals. Having policies in place help provide guidance to the membership and help associations to avoid discrimination complaints.