EMOTIONAL SUPPORT ANIMALS AND HOW COMMUNITY ASSOCIATIONS SHOULD HANDLE SUCH REQUESTS [9-8-15]
EMOTIONAL SUPPORT ANIMALS AND HOW COMMUNITY ASSOCIATIONS SHOULD HANDLE SUCH REQUESTS
By Shantell Lewis, Esq., Bakalar & Associates, PA
An issue that many community associations are being challenged with is when occupants, including property owners, tenants, and visitors, want to bring pets into their property and the community has a strict “no pet” policy. In the case of “emotional support animals”, these types of animals are not the same as traditional pets. If a resident has a prescribed emotional support animal and provides documentation regarding same, the animal is allowed in the community. Denial of the request for an emotional support animal is a violation of federal and state law and it carries severe penalties and may result in a lawsuit.
An emotional support animal is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability. The animal is not trained to perform tasks for the person who has emotional disabilities. However, the person who is seeking the emotional support animal must have a verifiable disability. Companionship is not a sufficient reason. Pursuant to the Fair Housing Amendments Act of 1988 (the FHA), emotional support animals are usually considered a “reasonable accommodation” to those housing communities that have a “no pets” rule. In other words, just as a wheelchair provides a person with a physical limitation the equal opportunity to use and enjoy a dwelling, an emotional support animal provides a person with a mental or psychiatric disability the same opportunity to live independently. Failure to make reasonable accommodations by changing rules or policies can be a violation of the FHA unless the accommodation would be an undue financial burden or cause a fundamental alteration to the premises.
To qualify, a person must meet the federal definition of disability. The Federal Fair Housing Act’s definition is a as follows: a person who is disabled has a physical or mental impairment which (1) substantially limits one or more of such person’s major life activities, and (2) has a record of such impairment or being regarded as having such impairment. In addition, the person must provide written documentation from a physician or other medical professional stating that a person has a disability and that the reasonable accommodation (here, the emotional support animal) benefits the individual with the disability. The emotional support animal alleviates or mitigates some of the symptoms of the disability. The person does not need to disclose the disability. The written documentation should be sufficient to verify the requested need. If there are any doubts or questions, before denying the request, consult an attorney who is well versed in this area.
Although animals are allowed within the community, the owner must still abide by the reasonable rules within the community that apply to all residents, e.g., walking the dog on a leash, picking up after the animal, and making sure the animal does not destroy property. Community associations must ensure that they have enacted fair rules to maintain a happy and safe environment for all.