It’s All Gone to the Dogs
Community associations are getting more requests for exceptions to pet or no-animal rules. This allows people with disabilities to have emotional support animals (ESAs) in their homes and shared spaces. Numerous studies highlight the therapeutic benefits of animals in addressing mental health concerns and improving the quality of life for individuals with disabilities. However, as ESAs become more prevalent in the United States, so too has the controversy surrounding their legitimacy.
Understanding the Fair Housing Act
The Fair Housing Act (“FHA”), which prohibits discrimination in housing, was amended in 1998 to include protections for individuals with mental or physical impairments. This amendment makes it illegal to discriminate against disabled individuals in housing matters. While ensuring equal access to housing opportunities and specifically protecting the vulnerable disabled population.
The FHA requires community associations, like apartment-style condos and single-family homeowners associations, to make reasonable accommodations for people with disabilities. This includes allowing ESAs when necessary for a disabled person to fully enjoy and use their home.
What are Emotional Support Animals?
An emotional support animal is a clinically prescribed animal that provides therapeutic relief and emotional stability to individuals with disabilities. ESAs help reduce stress and anxiety, improve mood, assist with emotional regulation, and enhance social interaction.
Unlike service animals, ESAs are not required to undergo specialized training. Service animals require training to do work or perform tasks for the benefit of an individual with a disability. However, they are not considered pets, meaning pet rules and regulations do not apply.
Some HOAs attempt to impose restrictions on pets under governing documents. Some examples include breed, size, or quantity, and pet deposits. However, these rules do not apply to ESAs. Emotional support animals under the Fair Housing Act protect disabled persons with a legitimate need for an ESA.
Accommodation Requests Under the FHA
Under the Fair Housing Act, disabled individuals have the right to request reasonable accommodation for an emotional support animal. A reasonable accommodation is an adjustment to a rule, policy, practice, or service necessary for a person with a disability. This ensures they have equal opportunity to use and enjoy a dwelling, including public and common-use spaces. When evaluating a request for an ESA, a community association should consider the following:
1. Has the individual requested a reasonable accommodation — that is, asked to get or keep an animal in connection with a physical or mental impairment or disability?
2. Does the individual have an observable disability or does the community association have information giving them reason to believe that the person has a disability?
3. Has the requestor provided documentation that reasonably supports their disability?
4. Has the requestor of the accommodation provided information demonstrating that the animal provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?
The individual seeking an accommodation must provide information that reasonably supports their disability and need for an ESA.
This information may include a determination of disability from:
- A government agency
- Receipt of disability benefits or services
- Housing assistance or a housing voucher received because of disability
- Information confirming disability from a health care professional (physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse)
The documentation must establish a connection between the individual’s disability and the need for the ESA. Notably, online certifications alone do not suffice as reliable proof of an assistance animal-related need.
If the requestor provides suitable documentation supporting their disability and information regarding the assistance of the ESA, denying the accommodation request would be incorrect.
Before rejecting a request, the HOA should engage in a good-faith dialogue with the individual especially if the denial resulted from missing information. While an HOA may request additional information, it cannot require disclosure of details of a disability, medical records, or a medical examination.
Any requests for further clarification must respect the resident’s privacy. In some cases, this exchange may present alternatives that may meet an individual’s disability-related needs.
When Can Someone Deny an ESA Accommodation Request?
ESA reasonable accommodation requests can only be denied in limited circumstances. The individual with the disability is responsible for the care and control of his or her emotional support animal. A community association may deny a request if:
- The specific animal poses a direct threat to the health or safety of others
- The accommodation would result in substantial property damage.
- Granting the request would alter the HOA’s operations.
- The accommodation imposes an undue financial or administrative burden on the association.
Conclusion
Emotional support animals play a crucial role in improving the lives of individuals with disabilities. Nonetheless, fraudulent ESA claims often arise. Community associations must carefully balance accommodating residents with disabilities while maintaining the rights and well-being of all residents.
It is the responsibility of the HOA to ensure fair ESA accommodations and compliance with FHA requirements. This safeguards against unnecessary legal disputes and costs.
For guidance on FHA compliance, ESAs, or handling reasonable accommodation requests, reach out to NowackHoward! We offer legal counsel and advice to help navigate these complex rules and regulations.
