Q&A: Dog Day Afternoon (and Night)

Q I live in a small (no pets) condominium in New Jersey. Recently one of the owners acquired an emotional support dog. Unfortunately, I live directly beneath the unit, and I hear barking and jumping almost constantly. The managing agent says they are entitled to have the dog according to the Americans with Disabilities Act (ADA) and the federal Department of Housing and Urban Development’s Fair Housing Act regulations. I am recently disabled myself and spend much of my time at home. Don't I have rights, too, other than getting a dog myself? Two wrongs don't make a right. Now I understand the law is practically forcing this nuisance upon us. Is that really right? HUD says contact ADA. ADA says contact HUD. I am not getting any answers. Have you run into this situation before? I can't be the first with this. Please advise.

—Disgruntled in Denville

A “The law does permit residents in a "no pets" condominium to maintain a dog under certain circumstances,” according to Mary W. Barrett, Esq., a shareholder attorney with the law firm of Stark & Stark in Lawrenceville. “If a disabled person requires a dog in order to be afforded an equal opportunity to use and enjoy the unit, the condominium association must make a reasonable accommodation and modify its rules. Unless it is readily apparent, the resident making the request may need to provide documentation of the disability. (A disability is defined as a mental or physical impairment that substantially limits one or more major life activities.) There must also be a reasonable relationship between the disability and the accommodation requested. Assuming these criteria are satisfied, the condominium association must grant the request unless it will impose an undue financial or administrative burden on the association or it fundamentally alters the nature of an association policy, practice or service.

“In this case, the letter writer appears to have two concerns. The first is the violation of the "no pets" rule. As long as the resident requesting the dog met the criteria, the condominium likely had no choice but to grant the request. The second concern is the dog's behavior, specifically, noise from the dog's barking and jumping and this may be an issue that can be addressed by the condominium association. Disabled individuals with assistance animals of any kind are still responsible for the conduct of these animals. For example, if a service dog caused damage to the elevator, the disabled individual would not be exempt from responsibility. The same is true when a service dog barks incessantly or causes other unreasonable noise disturbances that adversely affect other residents. The letter writer may want to approach her neighbor, express her noise concern, and ask that it be addressed. If that is not successful, she may want to document the noise and approach the condominium association again to ask for its assistance. The condominium association should evaluate the issue and, if it determines there is cause to do so, address the issue; in doing so it may want to seek advice from legal counsel to ensure it avoids any unintentional discrimination. In any event, it is important that concerns regarding the legal presence of the dog are not confused with concerns about the improper conduct of the dog.”

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