Animals—Are people claiming disabilities to get around pet restrictions?
Michigan Community Association Law Blog
12 January 2015
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
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
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 Cummings,
McClorey, Davis & Acho, P.L.C. where he focuses his practice on
community association law, construction law, real estate law,
creditor’s rights in bankruptcy and probate and estate planning.
top contents chapter previous next