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Emotional Support Animals can create a mess
Portsmouth Herald - 8/12/2017
More and more condominium associations are facing the issue of what to do when an association has a "No Pets" policy and someone claims a need for an Emotional Support Animal, aka an ESA.
These situations are different than what can happen with disability assistance dogs. Disability animals, such as sight assistance dogs, are covered by the Americans with Disabilities Act.
Per the FHA, only dogs and horses can be certified as service animals. So, if you receive a certificate that says, for instance, a cat, gerbil or snake is a certified service animal, it's a fake. Anyone can get these online for a relatively small price. To prove a point during a court case about how easy it is to get a support animal certificate online, one attorney said he once paid $49.99 to register "Pluto" as a support animal for his owner "Mr. Mickey Mouse."
ESAs, on the other hand, are governed by the Fair Housing Administration (FHA) and that can make all the difference. An ESA, as opposed to a disability serve animal, is a companion animal that provides a therapeutic benefit to a person with a defined mental, psychiatric or emotional disability such as depression, bipolar disorder, panic attacks or anxiety. These may be hard to tell by observing someone, so associations rightly get to express concern. And an ESA can be any animal that provides therapeutic relief, aka, emotional support to an owner, so confrontations abound.
If there is a legitimate need and a legitimate animal, the board has to allow the animal even if there is a no pet policy or it faces discrimination charges by the FHA, a place no association wants to be. The FHA defines discrimination as including "a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling."
In English, this means the individual who requests an ESA must establish his or her disability, and that the emotional support animal is necessary and reasonable to afford individuals with disabilities equal opportunity to use and enjoy a dwelling.
However, the line drawn by the FHA about allowing ESAs is not a hard set line. The reasonableness requirement limits accommodations to those that do not impose an "undue hardship" by causing excessive financial burdens to the homeowner or condo association or by fundamentally altering the nature of the subdivision or condo project such as by having an ESA dog that bites or destroys the common area. For instance, an association can bar the best ESA horse, if there is no paddock on site.
Here's how it works best and in most instances: A member of an association faced with a pet restriction in the governing documents will request an accommodation to be able to keep the pet. The request has to be in writing to protect the owner and association. It has to include a letter from a doctor that does not need to be notarized so long as it is on the doctor's stationary. I have seen one that was not on letterhead and the request was denied.
The letter does not need to state the member's disability but only that the person is disabled and the life functions limited by the disability. If the disability is apparent and the request is obviously related to the disability, a board of directors cannot request additional information and must approve the request. But if the disability is not apparent, as is the case for many if not most emotional disabilities, a board can require the owner to provide reasonable documentation verifying the disability.
This does not mean any animal providing some benefit to a resident must always be accepted. Rather, the mental health professional must explain how the ESA requested is necessary, and confirm the tasks the animal performs specifically address the disability claimed. This requires more than a mere statement that a dog or cat makes a tenant feel good. Alleviating depression (if depression is a symptom of the mental condition, or the condition itself) can be a function of the ESA and should satisfy the requirement.
Two final points. First, in case a board gets any ideas, an association cannot charge a deposit as FHA guidelines note the animal is not a pet, but an emotional service companion, so deposits are not allowed. Second, an association may not ask an applicant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person's physical or mental impairments.
It can get a bit complicated and it is important that an association balance the rights of all residents in a no pets condo association against a documented need of an ESA to help one of its residents. If done properly, the balance is well done. Who, after all, would object to Pluto?
-Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at firstname.lastname@example.org and Ducharme Law, P.L.L.C., found at www.newhampshirecondolaw.com. His column appears bi-weekly.