By: Shantrell Lewis, Esq. / Bakalar & Associates, P.A.

An issue that many community associations are being challenged with is when occupants, including property owners, tenants, and visitors, want to bring emotional support animals onto their property and the community has a strict “no pet” policy. Emotional support animals are not the same as traditional pets. Therefore, unless the animal poses a direct threat to others, they are allowed in the community. Furthermore, 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 (ESA) is any creature, e.g., dog, cat, hamster, etc., that does not need to be trained, and lessens the effects of a person’s mental illness or disability. An ESA 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 ESA must have a verifiable disability. As it pertains to emotional support, this may include anxiety, vision/hearing impairment, depression, or other conditions that are exacerbated by stress. Companionship is not a sufficient reason. If a resident has a prescribed emotional support animal and provides documentation regarding same, the animal is allowed in the community.

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 person requesting the ESA must show a nexus between the animal and the disability, e.g., a person has insomnia and the dog helps him sleep. 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 emotional support 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. The only time an animal that is reasonable and necessary can be denied is when the animal poses a direct threat to the health and safety of other residents. Community associations must ensure that they have enacted fair rules to maintain a happy and safe environment for all.