Q&A: Emotional Support Animal (ESA) Dilemma

Q. My New Jersey condo association has a three-pet/one-dog pet policy. I am aware that regardless of any association’s pet policy, service/support animals for those with disabilities must be allowed (i.e., seeing-eye dogs, those for the hearing impaired, emotional support for those diagnosed with PTSD, etc.).

Recently, some residents who have been “caught” owning more than one dog have gone online and purchased ‘emotional support animal’ certificates, and presented them to the board/management to validate their otherwise improper second dog.

My research seems to indicate that if a resident is claiming the need for an emotional support dog, we can at least ask them to provide a letter from a qualified medical provider certifying the need for such an animal. Can you help clarify?

                   —Confused About ESAs

A. “Generally, the applicable laws that prohibit housing discrimination in New Jersey associations are: the Fair Housing Act, 42 U.S.C. 3601, et seq., (the FHA); and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, et seq., (the LAD),” says attorney Hubert Cutolo of the firm Cutolo Barros in Manalapan. “The Americans with Disabilities Act, 42 U.S.C. 12101, et seq., (the ADA) may be implicated if the common interest community permits the public to use its facilities. Specifically, the FHA imposes a duty to reasonably accommodate persons with disabilities. (See 42 U.S.C. 3604(f)(3).) It is not uncommon for associations to promulgate rules and regulations imposing restrictions on pets, such as the example above.

“Landlords, condominium associations, homeowner associations, cooperative boards, and anyone else with authority that impinges upon the residency of a person with a disability must ‘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 unit.’ (42 U.S.C. 3604 (f)(3)(B); 24 C.F.R. 100.204 (a); N.J.A.C. 13:12-3.4 (f)(2)). The obligation to accommodate extends to rules, policies, practices, or services that concern public and common use areas as well as those that concern the dwelling unit itself. (Id.)

“The U.S. Department of Housing and Urban Development (HUD) provided guidance in its April 25, 2013 Fair Housing and Equal Opportunity Notice No. 2013-01 (the FHEO Notice) concerning requests for reasonable accommodations for ‘assistance animals,’ which includes both ‘service animals’ and ‘emotional support animals.’ A ‘service animal’ is defined by the ADA as ‘Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.’ (28 C.F.R. 35.104.) Service animals expressly exclude ‘emotional support animals’ from its definition. (Id). However, HUD explained that ‘[T]he definition of ‘service animal’ contained in the ADA regulations does not limit housing providers’ obligations to reasonable accommodation requests for assistance animals in housing under’ the FHA. (See the FHEO Notice.) Accordingly, both service animals and emotional animals must be treated equally by associations when responding to a request for a reasonable accommodation by a person with disabilities.

“In assessing whether to permit a reasonable accommodation, an association may require ‘reliable documentation of a disability [if the disability is not readily apparent or known] and their disability-related need for an assistance animal.’ (See the FHEO Notice.) If, however, ‘the disability is readily apparent or known, but the disability-related need for the assistance animal is not’ then an association may require ‘documentation of the disability-related need for an assistance animal.’ (Id.) Associations may require documentation from ‘a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.’ (Id). The documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.” (Id.)

“Based on the question posed, it is our understanding that some owners may be seeking to circumvent the pet policy by purchasing an ‘emotional certificate’ to justify an accommodation subsequent to being discovered to have violated the rules and regulations regarding pets. The issues are highly fact-sensitive. and there is no ‘bright-line’ law to apply here. If the emotional certificate is deemed reliable and adequately establishes that the animal provides disability related assistance, then the association should allow the accommodation regardless of when the accommodation was requested (i.e., before or after the occupant obtained the assistance animal). Any association reviewing a reasonable accommodation should consult its legal counsel in the event it wishes to deny the request prior to making its final decision.”

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