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Client Alert: Emotional Support Animals in Community Associations: Balancing Fair Housing Obligations with Resident Expectations Through Effective Accommodation Policies

For community associations, few issues require more careful balancing of the individual rights of owners and the collective community interests than accommodation requests for emotional support animals (“ESA”). Under the federal Fair Housing Act (“FHA”), state fair housing laws, and local fair housing ordinances, qualified disabled owners are entitled to reside with an ESA even in a condominium, cooperative, or homeowners association with restrictive covenants that limit or prohibit animals on the property. For other residents who intended to live in an animal-free or small animal community, ESA’s can create concerns about health and safety. For the board, ESA’s can give rise to issues such as property damage and noise complaints. Given the need to balance these sometimes competing interests while properly and timely addressing reasonable accommodation requests for ESAs, prudent boards should establish policies and procedures for handling such accommodation requests.

Although ESAs are often colloquially grouped with service animals, they are treated differently under fair housing laws. Unlike a service animal that must be individually trained to perform tasks directly related to a person’s disability, an ESA’s value lies primarily in its calming presence, and no specialized training is required. Under the FHA and similar state/local housing laws, a resident or potential resident who is disabled may seek a reasonable accommodation to pet restrictions when the accommodation is necessary to afford the individual an equal opportunity to use and enjoy the dwelling. The request does not need to follow any magic-word formula, but it must make clear (1) that the resident has a physical or mental condition that substantially limits one or more major life activities and (2) that the ESA alleviates at least one identified symptom or effect of the disability.

Community association boards may require reliable documentation confirming that the resident has a disability and explaining the nexus between the disability and the requested accommodation, provided they do so in a manner that is uniformly applied and limited to information reasonably necessary to evaluate the request. A letter issued by a treating physician, psychologist, or qualified mental-health professional—confirming the resident’s disability status and explaining how the animal’s presence mitigates the symptoms of the disability—will ordinarily be sufficient to establish that the accommodation for the ESA is both reasonable and necessary. Online certificates or “registrations” generated by websites that sell animal “licenses” without any bona fide provider-patient relationship carry little, if any, legal weight and can be lawfully discounted.

Once the owner provides information establishing that the ESA accommodation is reasonable and necessary, the board will need to allow the ESA to reside in the community. The board can, however, establish certain reasonable requirements for the ESA. These can include documentation of vaccinations and local licenses, agreement to promptly clean up animal waste, and payment for any damages caused by the ESA. The board cannot, however, charge a fee or require additional insurance for the ESA. Once the ESA is residing in the community, the resident is responsible for insuring that the ESA does not have behavioral problems that pose a direct threat to the health or safety of others that cannot be mitigated through additional reasonable measures, that the ESA does not make an unreasonable amount of noise that disturbs other residents and that the ESA does not cause substantial physical damage to the property. If the resident fails to fulfill these responsibilities after being given a reasonable opportunity to correct the ESA, the board may require that the ESA be removed from the property.
 
In order to provide guidance to residents and potential residents, the best practice for boards is to implement a written assistance-animal policy that sets forth: (1) the procedure for submitting a request, including the forms required, the supporting documentation needed, and the timeline for review; (2) the association’s right of inspection to confirm the animal’s continued residence and compliance with local licensing or vaccination ordinances; and (3) the resident’s ongoing obligations to supervise the animal, remove waste, and ensure that the ESA does not create excessive noise, odors, damage, or other nuisances. Such a policy, if applied consistently, both reduces the risk of discrimination claims and reassures other owners that their reasonable expectations regarding quiet enjoyment and common-area cleanliness will remain protected.

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