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Q&A: When an Emotional Support Animal Irritates the Neighbors

Q&A: When an Emotional Support Animal Irritates the Neighbors

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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2 Comments

  • I have a resident that has an ESA dog. This dog has become a nuisance to everyone in their building. The dog barks & whines constantly. The resident says that the dog has anxiety problems. They don't clean up the feces and the dog is not always leashed. I have made many attempts at resolving the issues with phone calls & notices. The complaints continue. Can I revoke their right to have this animal and evict them if they do not comply?
  • I own a townhouse with an HOA. A new owner moved in in Sept., 2021 and has three dogs, a violation of our covenants which allow one dog per unit. She first said they were her invalid husbands Emotional Support Animals. He died in January so she now claims they’re her ESA’s. When our HOA board asked for documentation she provided one of those fly by night “buy a diagnosis” letters. When the Board didn’t accept that, she claims that she now has a letter from her doctor. At what point were they legitimate ESA’s? These dogs have terrorized our neighborhood. They roam around unleashed and are continuously in my yard. She and I are not on speaking terms because when she moved in she kept bringing them to my yard to chat. I nicely tried to tell her to leave them at home because my dog is not dog friendly and I couldn’t contain him when they were there (mine was leashed in my backyard). They also jumped on me. I’m physically disabled and am afraid they’re going to knock me down. When I finally told her firmly to contain her dogs after repeated visits she was offended. They’ve also chased neighbors who are afraid of dogs down the street and sidewalks. They also trigger my dog when he sees them on my patio which has forced me to close my blinds to sleep or prevent my dog from disturbing my son who works from home. I notified my HOA in October, 2021. They’ve sent letters but haven’t followed up with any action against her. I installed security cameras which have captured her dogs on my patio on a daily basis, unleashed and alone. I’ve presented the pictures to the Board. Shortly after she moved in I was diagnosed with cancer and have endured these dogs throughout my surgery, radiation and now preventative meds that make me sick. The Board is aware of this as well as the fact that I’m physically disabled. What can I do and what action can our Board take when the offender is a homeowner. The Board has a history of ignoring complaints in hopes that they’ll just go away.