Jim Porter: May HOA prohibit ‘companion animal’?
June 12, 2014
Lately it seems like we've had a rash of cases involving guide dogs, signal dogs, service dogs and companion dogs. There is a difference how these animals are treated under the law.
My interest in writing on this topic came out of a Placer County case, so it's close to home.
NO DOGS ALLOWED
The Auburn Woods I Homeowners Association has CC&R's that prohibit dogs in the development. Nor are reptiles allowed as the Court curiously pointed out. In fact, the only animals allowed in Auburn Woods are one pet bird and up to two domestic house cats.
DISABLED HOME OWNERS
Ed and Jayne Elebiari purchased a condominium in Auburn Woods in 1998. As a result of a serious car accident in 1991, Ed was diagnosed as having bipolar disorder, obsessive-compulsive personality disorder and seizure disorder.
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Ed's wife Jayne suffers from "major depression, recurrent" according to her doctor.
Knowing full well that dogs were not allowed in their condominium complex, the Elebiaris brought home Pooky, a small terrier, hoping Pooky would help alleviate their depression. Their doctor later wrote that their moods improved after getting Pooky.
HOA STANDS FIRM
After receiving several letters from doctors describing the Elebiaris' medical conditions, the HOA wrote back admitting ADA laws "contemplate reasonable special accommodations for people with disabilities," but the HOA was firm that if residents in Auburn Woods wanted a companion animal it would have to be a cat. Mrs. Elebiari wrote that she was allergic to cats.
The HOA then suggested a cat, rabbit, hamster, guinea pig or bird, but not a dog.
The Elebiaris tired of it all, sold their condominium and moved to Oklahoma. I'd say that's a good call for them. The good life in California proved illusory.
FAIR HOUSING COMMISSION
But before pulling up stakes, the Elebiaris filed a complaint with the Fair Employment and Housing Commission which ruled that a companion dog would have been a reasonable accommodation and the administrative law judge awarded Ed $5,000 and Jayne $7,500 in emotional distress damages. Looks like a victory for the HOA to me.
The Auburn Woods Association didn't know a win when they saw it, so they appealed the FEHC decision.
I think you know where this case is going, but the Court of Appeal cited a landlord tenant case where a court forced a landlord to accept a tenant who had violated the "no-pets" restriction in her lease — based on the landlord's claimed refusal to provide "reasonable accommodation" for the tenant's disability.
The Court of Appeal explained a companion dog does not meet the definition of a "guide dog" which assists the blind, nor does it meet the definition of a "signal dog" used by the deaf or hearing impaired, nor is a companion dog a "service dog," a dog individually trained to the requirements of an individual with a disability such as rescue work, pulling a wheelchair or fetching dropped items. (My lab fetches pheasants and ducks, wonder if she is a service dog?)
DO NOT refuse to allow a guide dog, signal dog or a service dog — whether you're an HOA or a landlord.
COMPANION DOG ALLOWED
Auburn Woods had the right to ask for more information about the claimed medical conditions, but could not simply recite that its CC&R's prohibited dogs, at least in face of evidence little Pooky helped the Elebiaris' disabilities.
My advice is that before you categorically deny someone's companion dog, do your homework and ask for bona fide medical confirmation. Then tread lightly. And don't dare deny bona fide guide dogs, signal dogs or service dogs.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.