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By: Christopher M. Curci
Many HOA’s with a “no pets” policy struggle to properly handle requests from unit owners to have emotional support animals at the property. Governing Boards have to balance the needs of the unit owner making the request with the competing desire of other unit owners to enforce the Association’s “no pets” policy. We are often asked questions such as, “Do we have to allow this?” “What information can we request from the unit owner?” and, “Can we impose limitations on where the animal can go?” Complicating matters is that the law regarding emotional support animals is broadly written and largely unsettled by the courts.
To start, emotional support animals (or “ESA’s”) are different than service animals. A service animal is a dog that has been specifically trained to perform tasks for an individual with a disability, such as a seeing eye dog. By contrast, ESA’s provide emotional support and are not required to have any specific training. Any animal can be considered an ESA. In one extreme example, an airline passenger attempted to bring her emotional support peacock on an airplane. This ruffled United Airlines feathers, who refused to allow the peacock on the plane.
The nuances of the law can be difficult to follow. A unit owner is not required to produce a doctor’s note to verify his or her medical needs – even a letter from a social worker could suffice. But, if a disability is “readily apparent,” then the Association cannot ask the unit owner to provide any documentation at all. Further, while an HOA can adopt formal procedures for requesting an ESA, it cannot deny a unit owner’s request merely because he or she failed to follow those formal procedures. The Association cannot charge a fee to the unit owner for having an ESA, but the unit owner is responsible for any financial damage caused by the animal. Maybe the ESA can go in common areas, but maybe not. Confused? You should be.
There is no “one size fits all” answer to these questions. We have successfully defended HOA’s that have denied requests for an ESA or have imposed various restrictions on where an ESA can go. But, each situation is unique and depends on the specific facts and circumstances of the situation. HOA’s should be mindful that ESA requests can be legal landmines if not handled properly. The Department of Justice has fined HOA’s $25,000 – $45,000 for Fair Housing Act violations. Lawsuits and fines can and should be avoided with proper legal advice.
Christopher M. Curci, Esq. is member of Freeman, Mathis, & Gary’s HOA Practice Group and regularly advises and defends HOA’s in housing related disputes. He can be reached at [email protected] or by phone at 267-758-6013.