Emotional Rover Coaster
Tread carefully when a resident requests an accommodation for an emotional support animal. Investigations, lawsuits, and fines could be around the corner.
By Mike Ramsey
©2022 Community Associations Institute
Melissa Cox left Afghanistan in 2020 with post-traumatic stress disorder but also with a potential source of help: a retiring bomb-sniffing dog named Chica.
The foreign service medical officer made plans to adopt the canine as an emotional support animal that would help her cope as she resettled stateside. But she met resistance at her new cooperative building in Washington, D.C., an eight-floor, single-elevator building that does not allow dogs.
A therapist provided a letter explaining her therapeutic need for the animal, but the board demanded Chica first clear what seemed like arbitrary hurdles, Cox says. This included obedience school for a dog that already was highly trained. During the impasse, the black Labrador retriever sat in a West Virginia kennel.
“To me, it felt like they were just trying to put obstacles into place," Cox says of the cooperative. “They were really conflating it with allowing somebody to have a pet. They just didn't know what they could and could not do."
SHE CONSULTED WITH A fair housing organization and the U.S. Department of Housing and Urban Development before hiring a lawyer. The attorney told her to bring the dog home and fired off a letter to the cooperative board.
A truce set in.
“They didn't respond, and I didn't engage. But I did have Chica. We just never discussed it again," Cox says.
The conflict Cox encountered is not unusual, more than 30 years after the Fair Housing Act was amended to protect people with disabilities from discrimination.
Communities continue to grapple with requests for assistance animals. Observers say some leaders may not fully understand fair housing requirements, while other board members are skeptical and even combative about such requests.
In the context of the FHA, a person's disability may include psychological conditions that can be alleviated through the presence of an emotional support animal (sometimes referred to simply as a support animal or an assistance animal). At housing developments where pets are banned or restricted, renters or owners may request a reasonable accommodation to be allowed to keep such an animal.
“The concept under the Fair Housing Act is that you have to make a reasonable accommodation for somebody's disability. It does not say you have to roll over and play dead and do anything anybody asks for any reason," says Marshal Granor, a fellow in CAI's College of Community Association Lawyers (CCAL). “If somebody needed an emotional support elephant in a third-floor walk-up apartment, the answer is: Not reasonable. End of story. I can't imagine that there's any organization or governmental agency that's going to say, 'You've got to let the elephant in.' "
The Horsham, Pa.-based attorney holds seminars for real estate professionals on the FHA. He says questions about animals come up frequently. Granor himself has had clients on both sides of the issue.
In one case from a few years ago, he represented a mother and daughter who wanted to move into a high-rise where pets were banned. Granor says the family submitted letters from a psychologist and a psychiatrist, both of whom agreed the younger woman's support animal was necessary. The condominium board balked twice at the request.
“It took a third try and a threat of going to our human relations people, and they finally said OK," he recalls.
“Then I found out that this building allowed visitor pets," Granor adds. “Meaning, if your kids were going to Bermuda for three months and wanted to leave their animal with you, they could do that. It wasn't a scrubbed-down, HEPA-filter building where no animals are permitted because people have terrible allergies to pet dander. This was a (case of), 'We're just making this rule because we want it,' and that was very disappointing."
CAUTIONARY TAILS
HUD officials have said complaints over the denial of reasonable accommodations and disability access comprise nearly 60% of all FHA cases. Boards that err in the way they handle requests for support animals can face investigations, lawsuits, and the prospect of financial penalties.
Last year, federal prosecutors in New Hampshire announced that a property owner agreed to pay $35,000 to a tenant for allegedly violating the FHA by refusing to allow a reasonable accommodation at a Nashua apartment complex. The tenant, who experienced anxiety and depression, had sought permission to have a dog as an emotional support animal. The property owner agreed to allow a support animal—just not one that was a dog.
“We are pleased that the company has agreed to resolve this matter and is now instituting policies and conducting training so that individuals with disabilities are given equal housing opportunities," Acting U.S. Attorney John J. Farley said in announcing the court-approved consent decree.
Earlier this year, the South Carolina Human Affairs Commission sought unspecified financial damages when it filed a lawsuit against a homeowners association in Horry County. Officials said the community wrongly denied a renter the support animals that were medically necessary to her, according to the Sun News in Myrtle Beach.
The tenant showed the unit owner proof of disability and her need for emotional support animals, but the association bars nonowners from keeping pets. The board began issuing fines against the landlord and allegedly made the situation untenable for the renter. The tenant moved out early, depriving the owner of rental income, state regulators say. Both allegedly suffered emotional distress and inconvenience.
“It is the rare HUD lawsuit that goes all the way where an association wins," veteran community association lawyer George E. Nowack Jr. says of conflicts involving assistance animals.
His first instance of dealing with the topic was in the mid-1990s, a few years after the FHA was amended to protect people with disabilities. Nowack says he told an incredulous condominium board they needed to grant an accommodation for a heart-transplant patient whose doctor agreed that a dog would help keep the man calm. The high-rise where he was moving did not allow pets.
“They said, 'There's no way that you're right,' " recalls Nowack, co-founder of NowackHoward in Atlanta, a CCAL fellow, and a CAI past president. “They went to another attorney. The other attorney read my letter and said, 'I agree with George.' They were so mad at that attorney they went to a third attorney."
Fast forward to 2022. This same condominium dealt with a similar request from an owner, Nowack says. He offered similar guidance, based on the documentation that had been provided by a physician.
In such circumstances, Nowack stresses, “The dog always wins."
Boards that acquiesce to a request for a support animal do not grant carte blanche to the resident who secures permission. Aggressive behavior by support animals, droppings left in common areas, or incessant barking are problems that don't need be tolerated indefinitely, attorneys say.
“Approved assistance animals are still subject to the governing documents of the association. Most governing documents include a prohibition on noxious or nuisance- type behavior," says Molly Mackey, a CAI member and partner at Levenfeld Pearlstein in Chicago. “Boards still have the ability to issue violation letters for that type of a nuisance behavior by the animal and—after notice and an opportunity to be heard—potentially levy fines against the resident."
In worst-case scenarios, boards can even take steps to have the assistance animal removed, she says.
REASONABLE DOUBTS
Support animals are different from service animals, which typically are dogs trained to help a person with a disability perform a specific task. One obvious example of a service animal is a seeing-eye dog that helps a blind person navigate streets and public transportation. Wheelchair users may need a service dog to open doors or retrieve items from the floor. Service animals are not considered pets.
Greater confusion seems to lie with support animals, which also are not pets. Usually support animals do not have special training, but they can foster a sense of stability or emotional well-being for someone with a disability—including a disability that may not be visibly apparent.
Cox, the government worker who adopted the explosives-sniffing dog, Chica, says her animal has helped her readjust in the states. She notes it's a “two-sided" relationship.
“She's retired, and I have a responsibility to take care of her," Cox says. “Once I got Chica, I slept, and that reduces my reliance on sleep medication. If I have the dog next to me on the bed, I can get six or eight hours instead of four or five."
After returning from Afghanistan, she says, “I had a lot of trouble going into crowded, noisy places. Luckily, when we came back—actually, during the height of the COVID-19 pandemic—the streets were very quiet."
Professionals say board members at community associations may be skeptical of support animals following news stories about people selecting exotic species for their therapeutic needs and demanding they be allowed in public settings.
Perhaps most infamously, a woman in 2018 tried to board a United Airlines flight in Newark, N.J., with an “emotional support peacock" but was rebuffed. Four years earlier, a passenger and her emotional support pig were bounced from a US Airways flight in Connecticut after the animal defecated inside the plane and started screeching before takeoff. The major airlines no longer permit support animals but will allow pets of certain sizes to ride in the cabin, for a fee.
Also goosing skepticism about emotional support animals are highly suspect websites that crank out “approval" letters for anyone who fills out an online form and pays a fee. Critics consider these operations certificate mills. Even federal housing officials have waded in to set some boundaries.
“In HUD's experience, such documentation from the internet is not, by itself, suffcient to reliably establish that an individual has a nonobservable disability or disability-related need for an assistance animal," the agency said in 2020 as it offered revised guidance on animal-related accommodations.
Housing providers cannot ask a person to disclose their specific disability. But they may request documentation generally linking their disability with “the assistance or therapeutic emotional support provided by the animal," HUD says.
Who provides that documentation? The agency seems to favor a “licensed health care professional" such as a doctor or nurse, and that can include professionals who practice online. HUD does not specifically require someone with a medical degree.
Granor says the person making the recommendation could conceivably include a member of the clergy or a social services agency, as long as they have knowledge of the person with the disability and the effect the animal has upon them.
An Illinois law that took effect in 2020 requires that a “therapeutic relationship" exist between the individual who is recommending the accommodation and the tenant or owner who wishes to keep a support animal. This provision in the Illinois Assistance Animal Integrity Act is seen as pushback against the questionable websites.
“It's more of an art evaluating these than a science," says Mackey, the Chicago community association lawyer. “But when we are reviewing accommodation requests for our clients, we are looking for some indication in the documentation that there has been more than one visit—that this is a relationship that is ongoing."
Mackey says she noticed a spike in accommodation requests for support animals at no-pet communities during the pandemic. Demand for the animals has decreased in recent months, she says, but there still is about one inquiry a week from her law firm's client base.
“We generally say best practice is to send the request over to our office so that we can review it," she says.
Mackey adds that it is reasonable for community associations to request updated documentation for an emotional support animal on an annual basis because, “Someone's disability-related need for such an animal is subject to change over time."
Granor, the Pennsylvania lawyer, says that issue hasn't come up for him, and he's not sure a yearly review would work in practical terms. “Certainly, there is nothing in the statute which comes close to answering the question," he says.
Nowack says the verification letter submitted on behalf of the animal owner may guide associations on whether the approval process may be repeated. If, for example, the initial documentation says the person “currently needs" the support animal, that may pave the way for an annual reevaluation, he says. If the verification letter indicates the person's need will be long-term, or “forever," Nowack says, that is different.
DUELING DISABILITIES
Another murky area with respect to assistance animals centers on a scenario that has been characterized as “dueling disabilities." It boils down to this: What if a resident with an allergy or a severe phobia objects when another resident at the same community seeks an accommodation for an assistance animal?
Legal practitioners say the issue has come up, anecdotally. But no legal case is believed to have gone the distance to establish a precedent. The possibility of this type of conflict is mentioned in the Illinois statute. The state law says a housing provider may not deny the request for an assistance animal solely based on the existing disability of a neighbor.
Rather, it says the housing provider “must attempt to balance the disability-related needs of all residents." Mackey says this means each case of conflicting disabilities would need to be weighed individually.
“Our boards want to do the right thing," she says. “They want to grant accommodation requests when the correct documentation has been supplied and the resident is entitled to that accommodation."
Back in the Washington, D.C., area, Cox says she understands why the issue of support animals can be problematic for associations where an owner has purposely bought a unit at a community that bans pets.
Earlier this year, she sold her unit at the cooperative and moved out. She hopes to purchase a house in the suburbs with a yard for Chica, her support dog.
“I understand that there are two sides to it—absolutely. And we just need to be reasonable on both sides," Cox says. “There are ways that it can work for both the people who need the dog and also for the people who don't want to live in a building with dogs."
Mike Ramsey is a Chicago-based freelance writer.
© 2022 Community Associations Institute. Further reproduction and distribution is prohibited without written consent. For reprints, go to www.caionline.org/reprints.