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Community Associations are not required to Accommodate All “Emotional-Support” Animal-Related Requests
May 23, 2019 Posted in Community Association Law Share
One issue that has been plaguing community associations with pet restrictions in recent years is the increasing frequency of requests by unit owners seeking to keep emotional support animals in the community. While few Boards question the right of an individual to keep a service animal in their home when they truly need one, some Boards believe that individuals are making requests for “emotional support” animals in order to circumvent the governing documents.
In New Jersey, community associations that have pet restrictions or pet limits are generally required by law to allow unit owners to keep emotional support animals in the home as a reasonable accommodation. Under the Federal Fair Housing Act (“FHA”), housing providers, including community associations, are required to allow individuals with physical and/or mental disabilities to have an emotional support animal in their homes and common elements as a reasonable accommodation if having the emotional support animal may be necessary to afford the individual with disabilities an equal opportunity to use and enjoy a dwelling and common use areas. If an association that has a no pet policy in place were to unreasonably deny a disabled individual the reasonable accommodation of keeping an emotional support animal, it would likely be deemed discriminatory, and in violation of the FHA.
However, a unit owner that has a disability that is not readily apparent or known must still qualify for the reasonable accommodation, by submitting reliable documentation of their disability and their disability-related need for an emotional support animal. Associations can require that the unit owner provide a letter from a service provider, doctor, or therapist verifying the need for the emotional support animal. Associations should never simply accept certificates printed from the internet identifying a unit owner’s animal as an emotional support animal.
You may ask the unit owner to provide documentation from a third-party professional that meets the following criteria:
A letter from a licensed health professional (this includes, but is not limited to, a doctor, therapist, psychologist, psychiatrist, or social worker);
- The letter must be on the professional’s letterhead; and
- The letter must state that:
- The unit owner is under the professional’s care for the treatment of a mental disability found in the DSM IV or V (the Diagnostic and Statistical Manual of Mental Disorders, version 4 or 5) – if a mental or emotional disability;
- The unit owner’s disability substantially limits at least one major life activity; and
- The professional prescribes the unit owner an emotional support animal as a necessary treatment for the unit owner’s mental health.
If the documentation provided by the unit owner does not include the above listed information, you may ask the unit owner to provide the missing information. If the unit owner fails to do so, you may deny the accommodation request.
If you are presented with documentation that looks suspect, such as an emotional support letter that seems like it was bought online by a unit owner seeking to circumvent the Association’s pet restrictions, you may take certain steps to verify that the unit owner’s documentation did in fact come from a third-party professional. The documentation should come on the licensed professional’s letterhead along with their contact information, phone number, email address and license number for you to use to search for the professional for verification. Keep in mind, however, that you may not, for any reason, have direct contact with the licensed professional. Attempting to do so may be considered a violation of federal law.
Even if the unit owner provides the appropriate documentation supporting his or her request for an emotional support animal as a reasonable accommodation, the Association may deny the request in limited situations.
First, an Association may deny a unit owner’s request to keep an emotional support animal if there is an undue burden placed on the Association by granting the reasonable accommodation. An accommodation is considered unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations. Examples would include leaving the dog alone all day to howl at all noises, failing to pick up, groom, or get the dog its shots, or if the dog attacks other dogs or people. For minor offenses, the unit owner should be fined, not made to lose the dog.
The Association may deny a unit owner’s request to keep an emotional support animal if the specific emotional support animal in question poses a direct threat to the health and safety of others. This determination of a direct threat must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct. It may not be based on fears about a certain type of animal or evidence from damage done by previous animals of the same type. For example, if a dog has been previously declared a dangerous dog, this may indicate that the dog poses a direct threat in an individualized assessment. However, breed alone will not result in this determination.
At Griffin Alexander, P.C., our attorneys have decades of combined experience representing community association boards and their members in various legal matters (from transactional concerns to disputes).
We are committed to the provision of client-oriented service. We form a close partnership with our clients, which gives us a significant informational advantage that we can leverage over the course of the dispute process. This level of engagement and transparency also ensures that clients have an opportunity to ask questions and get answers relating to their litigation concerns.
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The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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