Condominiums and other common interest housing communities have a long history with trying to enforce their use restrictions. These battles often stir much passion. However, rules that ban or limit the size of dogs, cats and other household pets seem to strike an especially sensitive nerve. Many owners love animals and cherish the companionship that a dog or cat can provide. But such owners often find themselves living in an association with these types of “pet” restrictions. Do they need to try and amend the deed restrictions or move to another complex where pets are permitted? Not necessarily. If they suffer from high blood pressure, high cholesterol or depression a pet just may be the right medicine. In addition to the regimen of statins and anti-depressants to treat these ailments, doctors have now apparently discovered a panacea for these and other related illnesses; the emotional support animal. The dilemma that many directors face is trying to enforce pet restrictions when an owner produces a doctor’s note (often written on a prescription pad) telling the Board that he or she needs the pet to help treat the owner’s depression or high blood pressure. While the Board must provide reasonable accommodations for an owner who requests assistance in living due to a disability or handicap, the definition of “disability” has become so broad in its interpretation that almost anything can qualify. A disability or handicap is any condition that limits a person’s major life activities (e.g. walking, talking, seeing, hearing, and breathing). Courts now routinely agree that mental illness such as depression or bi-polar disorders are disabilities. Similarly, high blood pressure is probably now a disability. If an owner requests a dog or cat to assist them with their particular disability, the Board may have to permit the pet as a reasonable accommodation.
First, the owner needs to provide medical documentation that he/she suffers from a disability or handicap. This needs to come from a licensed medical professional. The physician must state that the disability involves a substantial impairment in one or more of life’s major functions. In addition, the physician should explain how the animal is needed to overcome or deal with the substantial impairment of a life function. If an owner cannot produce such documentation, the Board does not need to allow the pet. Some federal courts also require the owner to show that the animal has some special skills or training to set it apart from an “ordinary” dog or cat. The extent of such training is debatable. At least one court has ruled that simple obedience training is sufficient. However, the recent trend in these cases appears to allow emotional support animals even without a showing that the animal has special skills or training. The reason offered is that the animal by its very nature provides a calming effect that directly lessens the affect of an owner’s disability. Still, the law is unsettled in this area. Directors must make a business decision with these types of cases. The Board may legally reject an owner’s request for a service animal until and unless the owner proves that the animal has some special skills or training to alleviate the disability. However, the owner may then file a housing discrimination complaint against the association, which can be both time consuming and very expensive. Most Boards are not willing to push the envelope this far. If the Board decides to allow a pet as a reasonable accommodation, it will not prevent it from continuing to restrict pets for other unit owners without a handicap (assuming the restriction is uniformly enforced). In addition, a service animal cannot become a nuisance or threat to the other unit owners. If the animal ultimately does become a nuisance, the Board could demand its removal and such action would not be housing discrimination.