July 2009

Is Fido a medical necessity, or are we being taken for chumps?

That's the question HOA board members are asking themselves as a growing number of owners claim that their beloved pet isn't a violation of their association's rules but a critical part of their medical treatment.

Here's what you need to know about comfort animals and how your association should treat owners' requests for them.

What is a Comfort Animal?

There's no standard definition of a comfort animal, and many people have different names for animals that aid in the medical treatment of humans. Whatever their name, their purpose is simple: to improve the mental or physical health of a patient.

The problem for condo and homeowners associations, however, is that the request for comfort animals can butt up against pet restrictions. "The issue is that people are claiming they're disabled and need to keep their animal, and the association has a pet restriction," says Phaedra J. Howard, an associate at Hellmuth & Johnson PLLC in Eden Prairie, Minn., who advises associations. "Sometimes these people are legitimately disabled, and sometimes they're not."

There's the rub—determining who's disabled, and who's pulling your leg to keep an outlawed pet. In most states, your association is well within the law to ask for medical documentation of an owner's illness so that you can make a fair determination of the need for a comfort animal. "There's no problem with requesting documentation," says Howard. "You can request information from the owner's physician regarding the disability, if it's not obvious, and the need for this animal. In Minnesota, you can also ask how this animal has been trained to assist this person. Owners usually get hung up on that. They may provide documentation of their disability but will stick with their story that they need the animal and will be depressed without it.

"The statute is pretty clear that the animal has to be specially trained," adds Howard. "But the association has to decide whether it's worth it to litigate the dispute. I always advise associations to stick to their guns because it's a slippery slope."

Difficult to Enforce

"We tell our associations that these are very difficult claims," says Paul Milberg, a senior associate and head of the covenant enforcement department at Katzman Garfinkel Rosenbaum in Ft. Lauderdale, Fla., who also advises associations. "There's a lot of abuse. People hear about comfort animals from their friends, and they think, 'I'll just get a letter from my doctor.' Some doctors will write anything the patient wants."

Milberg recently resolved a case involving a woman in an association that restricted owners to one pet that met a specific weight limit. "She had a cat and two dogs, and the dogs were over the weight restrictions," he says. "We wrote her a letter about the weight issue. She came back in the middle of mediation and said, 'I have a mental disability and depression, and I require comfort animals.'"

The association was open to her claim of a support animal, but it pushed back on whether three animals—and two over the weight limit—were necessary. "We said, 'It might be understandable that you need a support animal," explains Milberg, "but we'd like a doctor's note stating that you need three and that two need to be over the weight limit.'

"The way the rules are supposed to be applied is that you may need an animal, not that you need your specific animal," Milberg adds. "A person who's blind may need a service animal. But he doesn't need a specific dog. If his dog were biting people, he'd need to get a different animal. It's not about being upset that you live in a no-pet community. It's that a service animal is necessary to cure you or alleviate the symptoms of your disability. This woman was operating under the theory that she would be upset if she had to remove her pets."

Is It Worth the Fight?

Despite its strong position, the association settled the case in a way that allowed the owner to keep all three pets. "The association decided that in these times with foreclosures, it wasn't worth the money to fight the claim and have to pass a special assessment to cover $20,000 in legal fees over dogs," says Milberg. "The association allowed her to keep the pets, but she signed an agreement about how they'd be maintained and stating that once they passed away, she wouldn't get more pets. It was more a business than a legal decision."

If you'll just have to settle and allow owners to keep their pets, why fight over the issue at all? Because there's a principle at stake: You can't selectively enforce your rules. If you do, you'll be forever explaining to owners why you favor some over others.

"They're covenants, and if you don't enforce them, you're selecting who you're enforcing rules against and who you're not enforcing them against," says Milberg. "If you can get enough substantiation that the person's claim of disability is remotely valid, the next time you try to enforce the rule, you can say that you approved the animal because it was reasonable to believe that the person needed an emotional support animal, and the association didn't want to spend the money to fight."