The use of emotional support animals to provide therapeutic treatment to their owners is a growing trend across the United States. Qualified individuals who may suffer from various types of disabilities are utilizing the therapeutic benefits that emotional support animals can offer. However, one issue that emotional support animal owners may encounter is how to maintain their emotional support animals in condominiums that do not allow pets of any kind on the premises. The Fair Housing Act (“FHA”) makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” Waiver of no pet rules for animals that assist disabled persons in coping with their disabilities is a modification required by the Fair Housing Act, regardless of whether the animal is tasked, trained or assists by providing companionship and emotional support.
The United States Department of Justice (“DOJ”) and the United States Department of Housing and Urban Development (“HUD”) have the duty of enforcing the FHA. HUD issued a final rule in 2008 that clarified a housing provider’s obligation to accommodate animals that assist persons with disabilities titled “Pet Ownership for the Elderly and Persons with Disabilities.” The rule amends pet ownership requirements to provide that pet rules do not apply to “animals that assist, support or provide service to persons with disabilities” or animals that are necessary as a reasonable accommodation to assist, support, or provide service to persons with disabilities. The rule applies to both animals owned by condominium owners as well as animals visiting the condominium. The most significant component of the new rule is the removal of the requirement that an owner certify in writing that an animal has been trained to assist with a specific disability. While these regulations address public housing, HUD’s commentary published with the rule provides vital guidance on HUD’s fair housing enforcement stance on assistance animals.
What qualifies as a support animal?
Assistance and support animals are animals that provide assistance or perform tasks for the benefit of a person with a disability. Such animals are often referred to as ”service animals,” ”assistance animals,” ”support animals,” ”therapy animals,” “companion animals,” or “emotional support animals.” HUD regulations do not use or define any of these terms. Instead, in HUD’s amended public housing rule, 24 CFR Part 5, HUD makes clear that the use of assistance animals in the housing context is governed by the reasonable accommodation standard.
Under the FHA, in order for a requested accommodation to qualify as a reasonable accommodation, the requester must: (1) have a disability, and (2) the accommodation must be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the person’s disability. See HUD/DOJ Joint Statement and HUD’s policy manuals and handbooks, including the Public Housing Occupancy Guidebook and the Multifamily Occupancy Handbook, which provide applicable guidance on the reasonable accommodation law. In the case of assistance animals, an individual with a disability must demonstrate a nexus between his or her disability and the function the service animal provides. Examples of disability-related functions, include, but are not limited to:
- guiding individuals who are blind or have low vision,
- alerting individuals who are deaf or hard of hearing to sounds,
- providing protection or rescue assistance,
- pulling a wheelchair,
- fetching items,
- alerting persons to impending seizures, or
- providing emotional support to persons with disabilities who have a disability-related need for such support.
When may the association exclude an animal?
A housing provider may exclude an assistance animal from a housing complex when that animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated. The determination of whether an assistance animal poses a direct threat must be based on an individualized assessment relying on objective evidence about the specific animal in question, such as the animal’s current conduct or a recent history of overt acts. The assessment must consider the nature, duration and severity of the risk of injury; the probability that the potential injury will actually occur; and whether reasonable modifications of rules, policies, practices, procedures or services will reduce the risk.
In evaluating a recent history of overt acts, a housing provider must take into account whether the assistance animal’s owner has taken any action that has reduced or eliminated the risk. Examples would include obtaining specific training, medication or equipment for the animal. This direct threat provision of the FHA requires the existence of a significant risk-not a remote or speculative risk. Accordingly, the determination cannot be the result of fear or speculation about the types of harm or damage an animal may cause, or evidence about harm or damage caused by other animals.
What limitations may the association impose?
A person with a disability who uses an assistance animal is responsible for the animal’s care and maintenance. A housing provider may establish reasonable rules in condominium documents requiring a person with a disability to pick up and dispose of his or her assistance animal’s waste. Additionally, recent discussions with other condominium law attorneys suggest that under Florida law, condominium associations may limit the size of dogs as long as the restrictions do not prevent a reasonable accommodation, and the consensus in the legal community is that limiting dogs to 35 lbs. or less is reasonable.
With regard to damage done by an emotional support animal, a housing provider may not require an applicant to pay a fee or a security deposit as a condition of allowing an owner to keep assistance animal. However, if an owner’s assistance animal causes damage to the unit or the common areas of the dwelling, the housing provider may charge the owner for the cost of repairing the damage or if allowed by the association documents add the cost of repair to the owner’s association dues.