Companion Pets and Service Animals How Do You Determine a Reasonable Accommodation?

Probably the biggest point of tension for any condo, HOA or co-op board is a pet ban. Enacting one can be a heated affair, leading to fights and arguments throughout the building community, but maintaining a ban on pets can also result in a massive headache. 

“I wish I could say otherwise, but the abuse is staggering, in general, for the emotional support animals,” says JoAnn Nesta Burnett, a senior attorney with the law firm of Becker & Poliakoff in Fort Lauderdale, Florida. “Between the online websites that sell certificates, tags, vests, etc., and the medical providers that advertise to write letters for a one-time fee and after a one-time consult by phone or taking an online test (where they provide the answers), the abuse is difficult to control,” she says.

Do-it-Yourself Registry

There are a lot of websites that will provide people with badges and vests for their animals indicating that they are service animals for a certain price—around $70, according to our research—but those registries are all unregulated. There are no official registries for service animals; the only documentation that indicates if a service animal is legitimate or not is a doctor’s note.

“We do not accept the tags and certificates or the letters that we can establish are from registries (like the National Service Animal Registry; there is no recognized registry for ESAs or service animals) or the medical providers that advertise,” says Burnett.

What the law states, according to public information provided by the Judge Bazelon Center for Mental Health Law, is that co-op and condo boards, in addition to landlords, must make reasonable accommodation for any and all disabled individuals. 

“So is a service dog a reasonable accommodation? That is the question. The answer is, depending on the disability, a service dog may be the answer. For example, if someone is blind and the dog is a guide dog,” says Adam Leitman Bailey, founding partner at the law firm of Adam Leitman Bailey, P.C. in New York City.

According to the Bazelon Center, the Fair Housing Act (FHA) states that so long as the reasonable accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. 

It’s the Law

In Massachusetts, “it’s two laws,” says Matthew Gaines, an associate in the Condominium Group at the law firm of Marcus, Errico, Emmer & Brooks, P.C., in Braintree, Massachusetts. “It’s the Federal Fair Housing Act, and then the Massachusetts-specific law is Massachusetts General Law, Chapter 151B. And basically, what the law says is that if a disabled person needs some type of reasonable accommodation, which is an exception or a waiver to a rule, restriction, or policy in order to equally enjoy the premises as a non-disabled person, then the association may have to allow that request,” Gaines says.

In addition, the Department of Housing and Urban Development (HUD) and more than a few courts have stated that an exception to a “no pets” rule qualifies as a reasonable accommodation. Unfortunately, that leads to abuse.

“Very few laws have been abused as far as the reasonable accommodation statute. Abused in the sense that, I would say, most of the service dogs requested do not come from people who are disabled or people who have a disability that requires a service dog. They may want the service dog, they may love the service dog, the service dog may be part of the family, but there’s no disability where the service dog aids them,” says Bailey.

According to the law, so long as the person has a doctor’s note stating that they need the service dog they must be accommodated. They do not need to disclose what disability they have or their medical history.

Document My Dog

Under Massachusetts law, however, they “A: Must be disabled under the statute, and there's a definition in the statute; and B: There must be some nexus or relationship between the disability and what they’re requesting, how the dog will help them or alleviate the symptoms. The definition of a disabled person is, ‘Someone who has a physical or mental impairment that substantially limits one or more major life activities.’ Physical impairment is usually obvious: Someone who’s blind or deaf and maybe they need a seeing eye dog or a dog that helps them to hear, and that’s a service dog. And there is a difference between a service dog and an emotional support animal. Service dogs are specially trained, usually to help with physical disability, and then, as I said, the definition also includes mental impairments, which would be stress, depression, anxiety, Post-Traumatic Stress Disorder (PTSD), anything like that. And in that case, usually what the person is requesting is the emotional support animal,” says Gaines.

Don’t Ask, Don’t Tell

“In a purely residential community, with no short-term stays, the association can request reliable documentation from the requesting party’s medical provider (which may include physicians, social workers, therapists, etc.), in the form of a medical statement that explains that the requesting party suffers from a physical or mental impairment that substantially impairs at least one major life activity and an explanation of how the animal ameliorates the effects of the disability,” says Burnett. “The association may also ask for the author’s credentials/license number.  The association is not entitled to medical records or to seek information beyond this.  The association is not entitled to a specific diagnosis and should not ask for one.  Dates of treatment should likewise not be requested.”

“If the person’s disability is obvious, if they are blind or whatever, then you really cannot ask for any documentation from a medical provider. If the disability is not obvious, which is usually the case with a mental impairment, then you can. Then the condo association, the board, they can ask for the disabled person to provide documentation from their doctor, therapist, psychologist, psychiatrist, whatever it might be, certifying those two criteria that I said at the beginning, that the person meets the definition of a disabled person and that there's some nexus or relationship between the disability and what the person is requesting,” says Gaines.

Of course, just like with the websites promising to “officially” register service animals for a one-time fee, there are similar websites that will provide people with a doctor’s note for a service animal after a fee and a very brief talk with a social worker or psychiatrist. 

“I will say that when I got one of those in for the first time, I was very confused by it. I looked at it, did some research, and in talking with some other folks in this area of the law, we all kind of raised an eyebrow too; no one had really seen it. So I actually went onto that website and basically filled out the questions for one of the partners in my office as if I was him and sure enough, two weeks later in the mail, he got that letter. He didn't even complete the form himself—I did it for him. So it surely goes to the point that there seems like there’s some legitimate reasons to question the credibility of those letters,” says Gaines.

In 2014, the New Yorker  magazine ran an article in which a writer sought out one of these services and was able to get a doctor’s note for a snake named Augustus which she proceeded to take across the New York City. The process she went through consisted of a short conversation with a therapist over the phone that involved only a few easy questions and ended with said doctor’s note arriving in an e-mail the very next day.

A support animal, “does not have to be specially trained and it doesn’t even have technically to be a dog, it can be any type of animal. I have seen requests in my day for dogs, cats, birds, ferrets, a snake, an iguana, and I even had a pot-belly, a little pot-belly pig, like a miniature pig,” says Gaines.

As mentioned earlier, there are limits to what you can and cannot ask. Residents do not have to provide the building with their medical records or what their specific disability is, but that doesn’t mean that the building is powerless in fighting fake service animal requests.

“Once they open it up and claim a disability as a result of their dog, in my book it’s no holds barred,” says Bailey. “You have a right to investigate to see if the service dog is necessary, or is it a ploy to get a dog in a building that doesn’t allow pets. So at this point we are doing a fair due diligence investigation to determine if the service dog is actually necessary. If it’s close we will let the dog in, if they got a registration in the mail or aren’t willing to give us a doctor’s note, then we have enough evidence at the time so we can deny entry and win the case if they sue,” he says.

“So there is no case law or guidance from any government agency that I am aware of that says an online certification like that is no good and I think that's mostly because it's so new. These online certifications have only been around for a year or two years. However, in my opinion,  I have seen those before where the letter comes in and it’s on letterhead and then when I Google the doctor, I can see that they're based out in Colorado or Oregon, or wherever it might be. 

“And that if you go to the website, you can clearly tell that for $99.99, by completing a handful of questions on their website, you’ll get this letter. In my opinion, that’s not sufficient—and if you get that letter, I think the board is within its rights to ask that the person see a local doctor or a therapist in a face-to-face consultation,” says Gaines.

During this process, more often than not, if an irregularity is found and it turns out the animal may not be a legitimate service animal, the person may well drop the request.

“I run searches on all the medical providers and the requesting parties to see what I can find.  I have made familial connections and found things on Facebook that contradict what is said in the medical statement.  In those cases, I usually ask for clarification and many times the request is dropped.  But we are really limited,” says Burnett.

It Could Be Legitimate

None of this is to say that there are not legitimate cases of people needing service animals to help them with disabilities ranging from blindness to PTSD. There are many such cases and the people who have legitimate service animals should be accommodated. Often those with legitimate disabilities dislike the people who get fake documentation for their animals more than the associations and businesses  dealing with the issue themselves, but when it comes down to it, this law, which is designed to help people, can be and is being used to get animals into places where they don’t belong. Unfortunately, there’s only so much anyone can do about it.

John Zurz is a staff writer for New England Condominium and other publications.

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Comments

  • In our community, we had a request from an owner for an emotional support animal. In researching this request we found that unlike a service animal there are few if any regulations around the emotional support animal, save for having some sort of documentation supporting the request from a registered therapist--but we had no choice but to grant the request. We did learn that we can make the same requests we do for owners of service animals, such as annual town/city dog license registrations, annual vet checks and shot records. However, this is a major difference in that a service animal is allowed anywhere the disabled person is allowed - into your club house, pool area, etc. but an emotional support animal does not have to be permitted to go anywhere the disabled person goes - the association can bar the pet from common areas - at least that's how our attorney read it for us in New Hampshire.