Article Courtesy of The Daily Business Review
By Michael E. Chapnick
Published February 26, 2018
Over the last five years, one of the most significant
areas of concern for Florida condominium associations, especially those with
no-pet policies, has been the rise in requests by occupants for associations
to provide “reasonable accommodations” in their rules and regulations by
permitting an emotional support animal (ESA). Given the potential for legal
repercussions in the event that a legitimate request is denied, associations
and their boards of directors and property managers should seek expert
guidance on how to address these requests.
The laws governing emotional support animals emanate from the Fair Housing
Amendments Act of 1988, and its state and local counterparts. The act
prohibits discrimination in the provision of housing to disabled persons,
and it requires that a reasonable accommodation in an association’s rules an
regulations be provided to a disabled person so that they can use and enjoy
the property to the same extent as a nondisabled person.
Disabilities can take many forms: some physical and others emotional and/or
psychological. For emotional and/or psychological disabilities such as
depression, there are rarely obvious, external symptoms.
The process for condominiums typically begins with a written request by an
owner or resident notifying the association of their disability and asking
for it to grant an accommodation for an emotional support animal. Such a
request may or may not be accompanied by a letter from a treating physician
or therapist. Since being disabled, as that term is defined in the law, is a
necessary prerequisite to exercising one’s right to be granted a reasonable
accommodation, the individual who is making the request will need to
demonstrate a disability. The act defines a disability as a condition that
impairs or substantially limits a major life activity, e.g., walking,
working, attending school, exercising, etc.
It is imperative for associations and their directors to understand that
simply because the disability is not readily apparent, but rather emotional
or psychological in nature, does not mean that the request is illegitimate
or deniable out of hand. For example, if the individual is being treated for
depression, especially if they are receiving psychiatric therapy as well as
perhaps also medication, it will be difficult to deny a doctor’s claim that
the animal provides the emotional support that the requestor requires to
perform even the most basic major life activities.
The owner/resident must be able to demonstrate to the association that the
disorder qualifies as a disability under the act and the emotional support
animal alleviates it. The accommodation must be deemed necessary to provide
the disabled owner/resident with an equal opportunity to use and enjoy the
residence, so they must demonstrate that the emotional support animal
mitigates their symptoms.
Once a request for reasonable accommodation is made, an association must
approve or disapprove the requested accommodation within a reasonable time
period. Unlike with obvious physical disabilities, associations may request
information regarding the nature of the psychological/emotional disability
so that they can make a meaningful evaluation as to whether the request for
accommodation is reasonable. They are entitled to inquire about how the
disability affects major life activities and how maintaining the animal will
assist the requestor in fulfilling these activities.
Once all of the requested information is received and reviewed by an
association, it should render a decision and issue it in writing to the unit
owner/resident. If the request is denied, the requesting member may then
file a complaint with the U.S. Department of Housing and Urban Development
or the Florida Commission on Human Relations, which would then investigate
the complaint to determine whether or not discriminatory conduct has
The association will then be required to respond to the complaint and
explain its position and reasoning behind the denial. If the investigating
agency concludes that discrimination has occurred, the effected party would
then be able to file suit against the association. Liability for such
discriminatory conduct may be found against associations, managers and, in
some cases, board members in their individual capacity.
While there are many legitimate psychological and emotional disabilities
that benefit from the use of emotional support animals, it is also widely
known that the rules governing ESAs are frequently abused in order to
circumvent legitimate association pet restrictions, as well as travel
restrictions for animals. In fact, a cursory search of “emotional support
dog” on Google produced more than five million results and provided links to
multitudes of kits with “emotional support dog certifications” for sale.
Given the growing popularity of requests for emotional support dogs and
other animals for both legitimate and illegitimate purposes, community
associations with pet restrictions should work closely with highly
experienced legal counsel in order to avoid potential legal pitfalls
stemming from denials of these requests.