Q&A: Emotional Support Animal

Q. I live in a 40-unit condo building, which has had a ‘no pet amendment’ since 1980. A woman recently purchased a unit and has been seen with a dog that barks all the time. She signed all the disclosure forms that stated “no pets,” but gave the board a note from a nurse practitioner stating that the dog is an emotional support animal. What can we do?

                            —Questioning Tenant 

A. Says Martin C. Cabalar, an attorney with Becker & Poliakoff in Morristown:“The Federal Fair Housing Act (42 U.S.C. §§3601-3619) and the regulations promulgated thereunder require ‘housing providers,’—including entities such as condominium associations—in New Jersey, to make ‘reasonable accommodations’ to disabled persons in rules, policies, practices or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. New Jersey’s Law Against Discrimination (N.J.S.A. 10:5-1 et seq.) similarly requires accommodation of the disabled. Decisions of federal and state courts in interpreting the Federal Fair Housing Law and New Jersey’s Law Against Discrimination have held that in certain instances housing providers, such as a condominium, must accommodate those with a legitimate physical or emotional disability requiring the support or assistance of an animal.

“Notwithstanding, simply providing a note from a nurse practitioner stating that the dog is an emotional support animal does not provide the governing body of a condominium the reasonable opportunity to establish that the resident suffers from a disability defined by law; and further, requires the physical assistance or emotional support of a dog to reasonably accommodate their disability. Thus, in this instance, it likely would not be unreasonable for the association to request additional information to allow its governing body to evaluate the reasonableness of the request.

“For example, the association may reasonably request that the resident provide a certification of a physician or other qualified treating professional certifying: (a) the disability or handicap suffered; (b) said disability or handicap meets the standards set forth by the Federal Fair Housing Act; (c) to the major life activities substantially limited by the disability or handicap; (d) whether treatment is available for the disability or handicap; (e) to the description of the accommodation requested; (f) as to whether the accommodation requested alleviates or mitigates the disability or handicap; and, (g) as to whether any alternative accommodations exist. If, upon receipt of such additional information, the association concludes that the resident is disabled under the law and that the physical assistance or emotional support of the identified animal is reasonably necessary to accommodate the disability, then approval of the accommodation is required by law.

“Where an accommodation is required by law, the resident is still required to maintain the animal in accordance with existing rules and regulations; which among other requirements often include, that residents permit no activity that creates a nuisance or annoyance to other residents. Such rules require the resident to take all actions necessary to prevent the animal from making noise that may unreasonably annoy or disturb the peace of neighboring residents.

“Keep in mind that where an accommodation is required to be made by law, the animal is not considered a ‘pet.’ Rather, it is an animal that the resident has claimed is required under the law for the physical assistance or emotional support for the disability that the resident is afflicted with. Therefore, the governing board of a community association should seek the advice of legal counsel before denying the request of a resident for a physical assistance or emotional support animal. The association’s legal counsel is best suited to advise and assist the governing board with implementation of appropriate procedures should the board receive such a request.”

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2 Comments

  • We need to hear more about this subject from attorneys from the landlord's perspective. I find it hard to believe that an apt. or condominium complex that has had a "standing no pets/animals" policy for years should be forced into this when there are so many places now that do readily accept pets/animals. All I can find on the internet about this is promoted by the pet sellers, and/or the online therapists who sell the letters necessary to get the animal. While I certainly do believe there are honest and legitimate needs for such companions, there is also wide spread abuse going on as well. There are also guidelines mentioned by Mr. Cabalar according to the government guide lines which do stipulate that this is in some cases not enforceable as promoted by the online web-sites that say your landlord cannot refute it I would like to read about current case laws if any, whereby the landlord did object and win.
  • Any dwelling that is subject to the Fair Housing Act is required to accept service and assistance animals as a reasonable accommodation, with a few exceptions in cases where granting the request would be "unreasonable" as it is defined in the FHA regulations. To deny them because there are other buildings that do allow pets (although HUD guidance documents make it clear that assistance animals are not pets) is akin to refusing to allow a wheelchair in a dwelling. Some examples of when it would be unreasonable for a landlord to grant a request for an assistance animal are if the tenant fails to establish a disability and related need for the assistance animal, the specific animal poses a direct threat to the health and safety of others (not based on stereotypes such as breed), the animal is known to cause significant property damage, it would impose an undue financial burden (usually in the insurance context, but again, the burden will be on the landlord to establish that there are no comparable policies at a similar cost), or the tenant fails to correct nuisance issues such as incessant barking or odors. https://www.hud.gov/sites/documents/SERVANIMALS_NTCFHEO2013-01.PDF