Q. I have a cat that is an emotional service animal (ESA). My neighbor also has an ESA, but it’s a dog. This animal barks non-stop. I’ve woken up early in the morning when they had the dog in the hallway. My bedroom is right there and I am always awakened by this dog’s excessive barking. They think it’s funny because they feel there is nothing I can do about it. I suffer from anxiety and depression which is why I have my ESA. Now mine is stressed out all the time because of the excessive barking. My neighbors next door have complained as well. I’m stressed out all the time because I am exhausted due to lack of sleep. Is there anything I can do to get relief?
—Anxious and Sleepless
A. “This is an increasingly common issue,” says Scott Eriksen, a shareholder with Perkins & Anctil, PC, a law firm in Westford, Massachusetts. “Support animals are all over the news lately (from peacocks on planes, to dogs in condominiums), and many of our association clients are concerned that the protections under the Fair Housing Act are ripe for abuse. Some individuals appear to invoke the act for unscrupulous or improper purposes. Still, we advise all of our clients that it is important to take all requests made under the FHA (and state statutes) very seriously.
“As a general rule, federal and state laws make it unlawful for an association to refuse ‘to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…’ 42 U.S.C. § 3604(f)(3)(B). A ‘reasonable accommodation’ is a rule or administrative change made in order to afford a handicap person full enjoyment of their home.
“Massachusetts law regarding this matter essentially mirrors the FHA. ( See M.G.L. c. 151B et. seq.) If an association does not attempt to address a disabled unit owner’s request for a ‘reasonable accommodation,’ it is possible that the individual may bring an action against the landlord for discrimination.
“Any person alleging discrimination under the FHA or Massachusetts law must make a prima facie showing that (1) she suffers from a handicap, (2) the association knew or should have known about the handicap, (3) the accommodation sought was reasonably necessary to afford the owner an equal opportunity to use and enjoy the premises, and (4) the association failed to make the requested accommodation. Assuming a reviewing authority finds that the requested accommodation is reasonable, then if the association fails to address the request in an appropriate fashion, the individual may be able to prove a case of discrimination.
“Notwithstanding the considerable latitude afforded requesting parties, we maintain that the accommodation must still be ‘reasonable,’ and neither the federal nor state acts should be interpreted as a license to run roughshod over the rights of other residents. Ideally, to guard against these issues, we seek to implement an accommodation agreement to memorialize the specific rights and obligations of the parties.
“So, for example, we would advise an association to permit the dog, but also require the owner to ensure that the dog does not become a nuisance or danger. Reasonable conditions achieved through an interactive dialogue can go a long way in protecting other residents who may otherwise suffer at the hands of irresponsible owners. Taking steps to enforce issues such as noise, nuisance or other violations will likely be easier if you have an agreement in place.”
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