Emotionally a Mess

More and more condominium associations are facing the issue of what to do when an association that has a “No Pets” policy and has someone who claims a need for an Emotional Support Animal(aka an ESA). Before going further, it is important to note these situations are different than what can happen with disability assistance dogs. Disability animals, such as sight assistance dogs, are covered by the Americans with Disabilities Act.  

(Interestingly, per the FHA only dogs and horses can be certified as service animals. So, if you receive a certificate that says, for instance, a cat, gerbil or snake is a certified service animal, it's a fake. Anyone can get these on line for a relatively small price.To prove a point during a court case about how easy it is to get a support animal certificate online, one attorney said he once paid $49.99 to register “Pluto” as a support animal for his owner “Mr. Mickey Mouse.”)

ESAs, on the other hand, are governed by the Fair Housing Administration (FHA) and that can make all the difference.  An ESA, as opposed to a disability serve animal, is a companion animal which provides a therapeutic benefit to a person who has a defined mental, psychiatric or emotional disability, such as, depression, bipolar disorder, panic attacks or anxiety. These, of course, may be hard to tell by observing someone, so associations rightly get to express concern. And ESA can be any animal that provides therapeutic relief, aka emotional support to an owner, so confrontations abound.

If there is a legitimate need and a legitimate animal, then the Board has to allow the animal even if there is a no pet policy or it faces discrimination charges by the FHA, a place no association wants to be. What is discrimination? Well, 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.”

In English this means the individual who requests an ESA must establish his or her disability, and that the emotional support animal is necessary and reasonable to afford individuals with disabilities equal opportunity to use and enjoy a dwelling.

However, the line drawn by the FHA about allowing ESAs is not a hard set line. The reasonableness 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 such as by having an ESA dog that bites or destroys the common area. So, for instance, an association can bar the best ESA horse, if there is no paddock on site.

Here's how it works best and in most instances, a member of an association, who is faced with a pet restriction in the governing documents, will request an accommodation to be able to keep the pet. The request has to be in writing to protect the Owner and the association. It has to include a letter from a doctor. The doctor's letter does not need to be notarized, so long as the letter is on the doctor's stationary. (I have seen one that was not on letterhead. The request was denied.)

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. If the disability is apparent and the request is obviously related to the disability a board of directors cannot request any additional information and must approve the request.  But if the disability is not apparent, as is the case for many if not most emotional disabilities, a board can require the owner to provide reasonable documentation verifying the disability,

This does not mean that any animal providing some benefit to a resident must always be accepted. Rather, the mental health professional must explain how the ESA requested is necessary, and confirm that the tasks the animal performs specifically address the disability claimed. This requires more than a mere statement that a dog or cat makes a tenant feel good. Alleviating depression (if depression is a symptom of the mental condition, or the condition itself) can be a function of the ESA and should satisfy the requirement.

Two final points. First in case aboard gets any ideas, anassociation cannot charge a deposit as FHA Guidelines note that the animal is not a pet, but an emotional service companion, so deposits are not allowed.

Second, an association may not ask an applicant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person's physical or mental impairments.

It can get a bit complicated and it is important that an association balance the rights of all residents in a no pets condo association against a documented need of an ESA to help one of its residents. If done properly, the balance is well done.

Who, after all, would object to Pluto?