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Who Let the Dogs Out?

Canine Companions as a Reasonable Accommodation for a Resident's Disability

Woof! If your HOA has gone to the dogs, it may have adopted pet restrictions to limit the number, size, or breed of dogs in your community. But even if your governing documents don't let every dog have its day, a request for a dog as a reasonable accommodation for a resident's disability is nothing to bark at. The Fair Employment and Housing Act ("FEHA") compels HOAs to make reasonable accommodations in their policies when necessary to afford a person with disabilities equal opportunity to use and enjoy a dwelling. As a result, if a resident submits "reliable disability-related information" establishing that she needs a dog to accommodate a disability, your HOA may be required to throw her a bone. And even if the resident's information is insufficient, your HOA would be wise to establish a record of engaging in the interactive process by asking for further information before telling her that she's barking up the wrong tree.

I. Accommodations for Disabilities

The FEHA requires an HOA to make reasonable accommodations in its policies when necessary to afford a person with disabilities equal opportunity to use and enjoy a dwelling. Government Code § 12927(c)(1) provides that unlawful housing discrimination under FEHA includes "refusal to make reasonable accommodations in rules, policies, practices, or services when those accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling."

In Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578, 1592, a court of appeal upheld the determination of the Fair Employment and Housing Commission ("FEHC") that an HOA had discriminated against owners who suffered from depression and other disorders in failing to reasonably accommodate their disabilities by allowing them to keep a small companion dog, despite a restriction on dogs in the CC&Rs, and despite the fact that the HOA had offered the alternative of getting a cat.

Thus, even if a resident has not submitted evidence that she needs a dog (or a certain number, size, or breed of dog) to accommodate her disability, an HOA should not simply deny the request. The FEHA requires the HOA to "request documentation or open a dialogue" with the resident about her disability and potential accommodations. Auburn Woods I, 121 Cal.App.4th at 1598 (internal citations omitted).

I. Permitted Pet Restrictions

Civil Code § 4715 (which only applies to governing documents enacted or amended after 2001) requires an HOA to allow owners to keep at least one pet, but permits the HOA to place reasonable rules and restrictions on pets. The HOA can enforce these restrictions, as long as it does so "in good faith, not in an arbitrary or capricious manner," and so long as its enforcement procedures are "fair and applied uniformly." Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 37-38 (internal citations omitted).

If the restrictions on pets are located in your CC&Rs, they are accorded a presumption of reasonableness and judged in light of their effect on the project as a whole, not from the perspective of any particular owner. However, if the restrictions are found in your Rules & Regulations, they are not entitled to a presumption of reasonableness, and must be reasonable both in general and as applied. See Rancho Santa Fe 115 Cal.App.4th at 40.

A number of courts have addressed pet restrictions found in CC&Rs. In Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 386, the state Supreme Court upheld the right of the HOA to enforce a restriction on cats and dogs in its CC&Rs. Likewise, in Villa De Las Palmas Homeowners Ass'n v. Terifaj (2004) 33 Cal.4th 73, the court upheld the right of an HOA to enforce a restriction on pets in its CC&Rs (even against an owner who purchased her unit before the restriction was added).

II. Owners Versus Tenants

The courts of this state have yet to address the issue of whether an HOA can regulate the pets of tenants more strictly than owners. Those who argue that an HOA must treat all residents' pets equally claim that an HOA cannot prohibit an owner from passing his right to own certain pets to his tenant as part and parcel of renting the unit. See Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1608 (holding that the right to use the common area facilities must pass from the owner to the tenant when the unit is rented). Those who hold this view also claim that pet rules aimed at only tenants cannot be reasonable because a dog is still a dog, no matter who owns it. We think this is the more defensible view.

In contrast, those who assert that pet rules may distinguish between residents based on ownership claim that an HOA can prohibit an owner from passing his pet rights to his tenant because these rights do not pass with the rental of the unit in the same way as the right to use the common area. Those who make this point also claim that pet rules aimed at only tenants can be reasonable because the Davis-Stirling Common Interest Development Act (Civil Code §§ 4000-6150) authorizes the adoption of reasonable rules concerning the leasing of units given the fact that renters are transient and pose a greater enforcement challenge, and because Civil Code § 4715 (which requires an HOA to allow owners to keep at least one pet) uses the word "owner," not "tenant." Because the law is unclear, we do not advise an HOA to change its pet rules to treat the pets of tenants more strictly than owners.

In addition, an HOA should remember that a resident may be entitled to a pet as a reasonable accommodation for a disability regardless of whether the resident is a tenant or an owner. The FEHA requires reasonable accommodations when necessary "to afford a disabled person equal opportunity to use and enjoy a dwelling" (Government Code § 12927(c)(1)), without specifying that the disabled person must be an owner. As held in Auburn Woods I, 121 Cal.App.4th at 1598, "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue" (internal citations omitted, emphasis added).

III. Two Cautionary Tails

For those HOAs who think the bark of regulatory enforcement agencies is worse than their bite, the U.S. Department of Housing and Urban Development ("HUD") seems to have stepped up its efforts to police failure to allow Fido as a reasonable accommodation. HUD enforces the Fair Housing Act or "FHA") (the federal counterpart of the FEHA). As a result, HUD actions are instructive for California HOAs.

In the 2016 case of Castillo Condo. Ass'n v. U.S. Dep't of Hous. & Urban Dev., 821 F.3d 92, 100 (1st Cir. 2016), the circuit court affirmed the HUD's finding that an HOA violated the FHA by refusing to allow a homeowner with disabilities to keep an emotional support dog as a reasonable accommodation to the Association's "no pets" policy. HUD ordered the HOA to pay $20,000 in damages to the victim, who was forced to sell his unit and locate alternative housing. HUD also ordered the HOA to pay a $16,000 civil penalty.

Further, in February of 2017, HUD brought a complaint against a landlord and its management company who allegedly violated the FHA by refusing to waive a $250 pet deposit for a combat veteran with a mental disability who has an emotional support dog and submitted a request for accommodation accompanied by a medical verification. The wrongdoers allegedly attempted to distinguish between a service dog and an emotional support dog. Eventually, the management company refunded the $250. However, HUD is still seeking $16,000 in civil penalties.

These cases make a crucial point: that an emotional support dog (such as a dog for treatment of PTSD) should be treated just like a service dog (such as a seeing eye dog) in reviewing a request for an accommodation. And keep in mind that although this blog post focuses on dogs, the same rules apply to miniature horses, cats, rabbits, miniature pigs, ferrets, birds, and others critters.

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