Emotional Support Animals in Communities with Homeowners Associations

By: Claudia Zissman-Monzon

The Fair Housing Act (“FHA”) protects individuals from discrimination when renting or purchasing a home, acquiring a mortgage, seeking housing assistance, or engaging in other house-related activities. Among the classes of individuals who are protected include individuals with disabilities. FHA allows individuals with disabilities to request reasonable accommodations from housing providers, including a homeowners association (“HOA”). Under the FHA, a disability is defined as a physical or mental impairment that substantially limits one or more major life activities.

HOAs may be required to provide a reasonable accommodation to an individual if a request for said accommodation has been made. A reasonable accommodation is defined as, “a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.” Under the FHA, an individual for housing makes a request for a reasonable accommodation whenever the individual makes evident to the HOA that the individual is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of the disability. In instances where the disability is known or easily discernible, a written request may not be required under the law. This request may be made at any point in time pursuant to the FHA. HOAs should be aware the request does not need to mention FHA or use the explicit words “reasonable accommodation.” As such, it is important the HOA thoroughly analyzes the request and perhaps keeps track of the reasonable accommodation requests within the community. The HOA may request relevant information while keeping in mind that only certain information can be demanded, and to not demand information that may be outside the scope. For example, typically, the HOA cannot (1) ask if an individual for a dwelling has a disability or a person who desires to reside in the dwelling or anyone associated with the individual has a disability, or (2) ask about the nature or severity of such person’s disability. There are two types of assistance animals:

(1) service animals, and
(2) other trained or untrained animals that do work, perform certain tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to in this guidance as an “emotional support animal”).

As emotional support animals (ESAs) become more prominent in residential communities, HOAs should ensure the proper procedure is being followed to avoid any potential issues. ESAs are ordinarily animals that do not have any kind of special training or certifications, but still provide support and assistance to the owner. As ESAs are utilized to assist with disabilities that may not be so visibly apparent (i.e. mood disorders, including but not limited to, depression and anxiety disorders), it is crucial the HOA gather the relevant information in evaluating the request regarding an ESA. Normally, the type of information that can be requested for an ESA includes information regarding the existence of a disability and the disability-related need for the animal. Often, the HOA may receive a letter from a healthcare provider that proves the animal’s credentials. With artificial intelligence on the rise, it’s possible the letters may be computer-generated and do not necessarily establish the animal as an ESA under the FHA. The Department of Housing and Urban Development has guidance on said letters, and if an HOA has any questions regarding a letter, they should consult with legal counsel. Additionally, be aware that some websites sell certificates, registrations, and licensing documents for ESAs to anyone who answers certain questions or participates in a short interview and pays a fee.

Nonetheless, it is important to remember the key distinction to the accommodation which is that it must be reasonable. Not every request for an accommodation is, in fact, reasonable. For instance, a reasonable accommodation request for typical animals that are kept as household pets including dogs, cats, birds, hamsters, fish, and other smaller-sized domesticated animals will likely be granted. However, animals that are less common, such as a fox, skunk, goat, miniature horse, etc., pose a higher threshold for the individual making the request to meet by showing the disability-related need to the particular kind of animal. If the individual requesting the reasonable accommodation cannot provide said information, the HOA may deny the individual’s request. In addition, although the reasonable accommodation may allow for the ESA to be in the community, the individual and his or her ESA must continue to abide by the HOA’s restrictions, including any applicable policies and procedures regarding pets and/or animals. Further, the HOA may adopt formal procedures for reasonable accommodation requests to aid in the event there is a disagreement or conflict surrounding the request.

Lastly, it is essential HOAs distinguish between ESAs and service animals, as service animals have different legal implications than ESAs. Ultimately, housing providers, including HOAs seeking guidance on reasonable accommodations for ESAs or any other matter that may implicate the FHA, should consult with legal counsel to ensure the appropriate process is being followed as FHA requirements can be intricate and complex.