In the past 5 years, community living associations, such as condominiums, co-operatives and homeowner associations, are increasingly being inundated with requests for accommodations for emotional support and companion animals. Many board members and co-owners feel that their neighbors are claiming a disability simply to get around pet restrictions in their communities.
Unlike service animals, which are regulated under the Americans with Disabilities Act (“ADA”) where the law is strongly established, emotional support and companion animals are governed by the Fair Housing Act (“FHA”). Service animals are trained and licensed. Emotional support and companion animals are not trained or licensed and you can simply pay a flat fee to get a license that qualifies an animal as an emotional support / companion animal.
Although a request for having a service animal and an emotional support animal both surround a claim of disability, a service animal typically deals with a known or visible disability such as a Seeing Eye Dog or Hearing Dog. A request for an emotional support animal deals with unseen disabilities such as emotional and/or mental sufferings. That is wherein the difficulties lie with emotional support animal requests.
An emotional support animal is a companion animal which provides a therapeutic benefit to an individual designated with a mental, psychiatric or emotional disability, such as, for example, depression, bipolar disorder, panic attacks or anxiety. While only dogs and miniature horses can be officially designated as service animals, emotional support animals can also be cats and other animals, such as snakes, birds, pigs, spiders, as prescribed by a physician or other medical professional. An emotional support animal does not require specific training, so long as, the presence of the animal mitigates the effects of the disability and the owner of the animal has a verifiable disability as defined by the Fair Housing Act.
Not all denials of requests for emotional support animals will be deemed discrimination. Generally, a simple pet restriction in the governing documents is not discrimination itself. The FHA defines discrimination as including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3) (B). Therefore, the individual requesting an emotional support animal must establish his or her disability, that the emotional support animal is necessary and reasonable to afford individuals with disabilities equal opportunity to use and enjoy a dwelling. 42 U.S.C. §3604(f)(3)(B). The reasonable requirement limits accommodations to those that do not impose an “undue hardship” by causing excessive financial burdens to the homeowner or condominium association or by fundamentally altering the nature of the subdivision or condominium project.
In most instances, a member of the Co-operative, Homeowner Association or Condominium Association, who is faced with a pet restriction in the governing documents, will request an accommodation to be able to keep the pet. Normally, the member will request the accommodation in writing and will include a letter from their doctor. The doctor’s letter does not need to be notarized, as long as, the letter is on the doctor’s stationary. The letter does not need to state the member’s disability but only that the person is disabled and the life functions that are limited by the disability. However, the doctor must explain why the requested accommodation is necessary and the member must demonstrate a relationship between his or her ability to function and the companionship of the animal.
The United States Department of Housing and Urban Development has taken the position that if an animal qualifies as a “support” or “assistance” animal, an across the board breed prohibition would not stand up. An association can prohibit vicious animals from being kept as emotional support animals, but only on a case by case basis as to the specific animal, and not generally based on the breed. A recent Florida District Court also held that a condominium association could not deny a member’s request for an emotional support animal simply on the basis that there is a local dangerous breed ordinance since the FHA supercedes local ordinances.
No government agency keeps track of such figures, but in 2011 the National Service Animal Registry, a commercial enterprise that sells certificates, vests, and badges for helper animals, signed up twenty-four hundred emotional-support animals. Last year, it registered eleven thousand!
Because of services that allow individuals to simply pay a flat fee to get a license that qualifies the animals as an emotional support animal and, based on the above, associations should take the initiative in adopting emotional support / companion animal policies and procedures before the next request. For example, once a person has been allowed an emotional support or companion animal, the association may, within a reasonable time from the original accommodation, request the member to provide a letter from his or her doctor re-certifying their need for an emotional support / companion animal.
The failure to properly accommodate a disabled person’s request can lead to an expensive and time consuming lawsuit, which can award attorney’s fees and costs to the disabled person. The Association can avoid pitfalls must remember that a reasonable accommodation under the Fair Housing Act is a highly fact-specific analysis and must be reviewed on a case-by-case basis and that associations can avoid pitfalls by seeking the assistance of its professionals when in receipt of such a request.
William Z. Kolobaric is an attorney with the law firm of Hirzel Law, PLC where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (248) 478-1800 or firstname.lastname@example.org. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.