Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Regarding your recent column on service animals, the issue you didn’t address is type or size. Our documents limit the size of dogs to 40 pounds. Fortunately, common sense usually prevails in our neighborhood, but we did have a service animal that well exceeded the 40-pound limit. This did not become a problem as it was an older dog and it has since passed away, but the question remains — if it’s a service animal but it exceeds the animal size limit in our declaration of condominium, why is it allowed? Signed, J.W.
Dear J.W.,
Let’s review how the Fair Housing Act works, because if you understand it philosophically, it largely answers your question. The Fair Housing Act prohibits housing providers from discriminating against disabled persons. Among other things, it requires housing providers (like community associations) to reasonably accommodate their rules if necessary to afford a disabled person the full use and enjoyment of the premises.
Courts have regularly found that allowing a person to have an animal in a community where animals are otherwise prohibited is a “reasonable” accommodation and must be allowed.
Now, that’s a situation where animals are not allowed at all. That is, even when a condominium prohibits dogs entirely, and when many owners have purchased homes there because they were hoping to live in a no-pet community, courts have found that it is a “reasonable” accommodation of that rule to allow pets when they are a necessary treatment for the resident’s disability.
So, let’s consider other types of restrictions. You tell me that your rule limits dogs to 40 pounds, and that an owner asked for an accommodation of that rule to keep a dog that was much larger. Intuitively, allowing a big dog when only medium dogs are permitted is a far less impactful accommodation than allowing dogs when no dogs are allowed, at all. And because we know the latter is allowed, it stands to reason that the former must be allowed as well.
The same would be true of many other restrictions on pets that do not go quite as far as banning them entirely, such as breed restrictions.
Until recently, the Office of Fair Housing and Equal Opportunity (the “FHEO”) had provided explicit guidance that both weight and breed restrictions must be accommodated under the FHA. And, while that guidance did not carry the force of a law, the guidance made enough logical sense that it was widely followed. However, in September of 2025 the Office of Fair Housing and Equal Opportunity withdrew all its previous guidance on the FHA and how to address accommodation requests. The agency explained that it viewed these guidance documents as an attempt to create new rights and obligations that didn’t exist under the law, and that the interpretation of statutes should be left to the courts.
So, among other things, the FHEO formally withdrew its 2013 guidance on service and assistance animals in housing, its 2020 guidance on assessing reasonable accommodation requests, and its 2022 guidance on the use of criminal records to reject housing applications. Those documents (and others) simply no longer exist. So, all we have to go by now are any appellate court decisions where these issues have been decided on appeal.
While I found one case where the issue of an assistance animal’s weight was relevant, the court avoided an explicit reasonableness analysis, because the appellant in the case didn’t raise the question on appeal. So we really have to guess how this would come out if it were litigated (and particularly now that the FHEO guidance, for whatever it was worth, no longer exists).
My gut feeling, as I described above, is that a court is likely to find that accommodating a weight restriction is “reasonable.” One could make the argument that there is no particular reason a smaller animal cannot serve the same emotional support function as a larger animal, and so it is not “reasonable” to force a housing provider to allow large animals if its rules require otherwise. But so many of these disputes are favorably decided on behalf of disabled persons that I think it’s an uphill battle for any housing provider. And, given that these lawsuits are expensive, as well as that any board member who rejects or impedes an accommodation request risks personal liability, it’s going to take a very special situation and community to decide to fight over a few pounds, when they know they are obligated to allow dogs in the first instance.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: My HOA bans pets over 40 lbs. Is that legal?
Reporting by Ryan Poliakoff, Special to the Palm Beach Post / Palm Beach Post
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