Reasonable Accommodation, The Fair Housing Act generally requires a homeowners’ association to allow a resident to have an assistance animal, despite any governing document provisions to the contrary, as a reasonable accommodation when there is an identifiable relationship, or nexus, between the need for the assistance animal and a qualified disability under the Act. An exception is for dangerous or aggressive animals.
- Specific Animals Only. A request for an assistance animal as a reasonable accommodation can be denied if (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
- Individualized Assessment. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct.
- No Denial Based on Speculation or Fear. Denial may not be based on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
- No Denial for Breed, Size or Weight. Breed, size, and weight limitations may not be applied to an assistance animal.
- No Fees or Deposits. Associations may not charge a fee or deposit to have assistance animals, even if the animal is believed to be dangerous.
2013 HUD Memo on Service and Assistance Animals
Court Ruling. Applying the above standards, the Vermont Supreme Court upheld a trial court ruling, that a landlord was justified in denying a reasonable accommodation request by a tenant for a specific dog on the grounds that the evidence showed the dog posed a threat to others and would cause substantial physical damage to the property. The supporting testimony presented to the trial court was:
- The dog regularly rears up on her back legs, lunges, or bares her teeth at people and other dogs when outside.
- The tenant told others that the dog had been trained as a “guard dog” and was “people and dog aggressive.”
- The tenant asked another resident to walk their dogs at different times to avoid conflict with the tenant’s dog.
- Evidence that the tenant may not be able to control the dog.
- Attempts by the tenant to mitigate the threat (limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression, especially considering the tenant may be unable to control the dog when she was outdoors.
Gill Terrace Retirement Apts. vs. Johnson (Supreme Court Opinion); (Superior Court Findings of Fact, Conclusions of Law and Order)
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