Beware of (emotional support) dog?

March 5, 2020

We’ve all heard the stories of emotional support dogs, peacocks and even mini horses on planes, baffled on how the owners got away with it.  How do you, as a community association, assess whether to allow support animals in your community if animal restrictions are established?

The Fair Housing Act

It is important to distinguish between the two types of assistance animals: (1) service animals, and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (“support animals”). We will focus our discussion on requests for accommodations based on support animals.

Unlike airlines, community associations, are governed by the Fair Housing Act (“FHA”).  The FHA makes it unlawful for associations to refuse to make a reasonable accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling.

A “reasonable accommodation” is a change, exception, or adjudgment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.    

Analyzing Accommodation Requests under the FHA

Associations are not required to automatically approve each request for accommodation of support animals but may request reliable documentation prior to issuing approval or denial.  Associations may use the following questions to help decide whether to grant the request for accommodation.

  • 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?
  • Does the person have an observable disability or does the association already have information giving them reason to believe that the person has a disability?
    • If an individual’s impairment is not observable, the association may request information regarding both he disability and the disability-related need for the animal. Associations are not entitled to know an individual’s diagnosis.
  • Has the person requesting the accommodation provided information that reasonably supports that he/she has a disability?
    • Information about a disability may include confirmation of the disability by a health care professional (e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse).
  • Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, aids, and/or provides therapeutic emotional support with respect to his/her disability?
  • Is the animal commonly kept in households?

Internet “Certifications”

The FHA allows associations to request “reliable documentation” from persons requesting accommodations for support animals.  Some websites sell certificates or licensing documents for assistance animals to anyone who answers certain questions and pays a fee.  However, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for a support animal.

Many legitimate licensed health care professionals deliver services remotely, including over the internet.  A reliable form of documentation is a note from that person’s health care professional that confirms his/her disability and/or need for an animal when the provider has personal knowledge of the individual.

Additional Considerations

In addition to the above set of questions, which are approved by the FHA, an Association should consider the following relating to all accommodation requests for support animals.

  • It is not necessary to submit a written request or to use the words “reasonable accommodation,” “assistance animal,” or any other special words to request a reasonable accommodation under the FHA.
  • Requests can be made by others on behalf of the individual, including a person legally residing in the unit or legal guardian or authorized representative.
  • Although not required, it is helpful to maintain a list of reasonable accommodation requests for your records.
  • Persons may request an accommodation either before or after acquiring the assistance animal.
  • Associations must consider the reasonable accommodation requests even if the person made the request after bringing the animal into the housing.

You should always consult with legal counsel and review the Fair Housing Act and Americans with Disabilities Act prior to making any decisions as each case provides a unique set of facts and circumstances.

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