Q. Our condo building has a no-pets amendment for nearly 40 years. So when a new owner joins our community, he or she is supposed to sign disclosure forms that indicate “no pets, no renters.” However, a new owner has been seen with a dog who constantly barks. She handed a nurse practitoner’s note to our board saying that her dog is an emotional support animal. Is this legal?
—Tired of the Barking
A. “The short answer is that if the resident has all of the proper documentation, you may not be able to do anything, and you may have to allow the dog,” says Matthew W. Gaines, a partner at Marcus, Errico, Emmer & Brooks, P.C., a law firm with offices in Massachusetts and New Hampshire. “The applicable law is this circumstance is the Federal Fair Housing Act (FFHA). Pursuant to the FFHA, if a disabled resident needs a reasonable accommodation (exception or waiver to a restriction) in order to enjoy the premises, then the board may have to approve the request. That is exactly the situation you are currently facing.
“This resident is claiming that she has a disability, and that the dog is necessary for her disability. In this case, the resident is asking for an emotional support dog. You are likely familiar with the term service dog, but emotional support dogs are also recognized under the FFHA. A service dog, as its title implies, provides a service to the disabled person (the most common example of course being a seeing-eye dog). Service dogs are usually professionally trained to provide a service. An emotional support dog, as its title implies, provides emotional support to the disabled resident. Emotional support dogs do not need any special type of training, and can be any type of dog—or animal, for that matter. Emotional support dogs are typically part of the treatment for a mental disability, as opposed to a physical disability.
“As for what the board can do – if the disabled resident’s disability is not obvious, which is usually the case with mental/emotional disabilities, the board is entitled to request and receive documentation from a qualified professional (doctor, therapist, psychiatrist, psychologist, social worker, nurse practitioner, etc.) certifying as to the resident’s disability and need for the dog. The board is very limited as to the information you can request. Provided that the professional certifies that the resident is disabled and that the dog is necessary, then the board will almost definitely have to approve the request.
“In the event the board has to approve the request, the board is entitled to impose reasonable rules and regulations (for example, [a] dog must be on a leash at all times when in the common areas, no excessive barking, etc.).
“As there can be serious consequences for mishandling a disabled resident’s request for a reasonable accommodation, I would highly recommend that the board get the association’s attorney involved immediately to make sure everything is handled correctly.”