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Pets Just May be the Right Medicine

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.

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13 Comments
  • Barbara Feeney
    March 19, 2009

    Dear Mr. Edwards,
    Thank you for promoting – with tact and sensitivity – acceptance of emotional support animals in community association and multi-family housing. Your efforts will help many people and promote the adoption of homeless animals from our many shelter and rescue organizations.
    I believe that many more people would adopt these Furry Friends if they knew they could. A major barrier to adoption includes the “no pet” rules imposed by many condo and homeowners’ associations. Many people do not realize that they may be legally entitled to a waiver of these rules as a reasonable accommodation to their disabling condition – or they are too afraid to challenge their intimidating association boards.
    On March 24, 2008, in response to a question regarding “…service animals and/or emotional support animals in a ‘no pet’ building…” Attorney Gary Poliakoff, renowned expert in condo law, wrote,
    “…The Courts and the U.S. Department of Housing and Urban Development (HUD) have interpreted the aforesaid requirement to allow not only trained service animals, but also emotional support animals. Proposed HUD Rules on the subject will vastly expand the definition of those pets allowed to such an extent, that if approved, will pretty much eviscerate no pet restrictions.” (Palm Beach Post, Condominium Law Q&A, March 24, 2008 http://www.becker-poliakoff.com/pubs/articles/poliakoff_g/condo/poliakoff_20080324.pdf )
    As of October 27, 2008, those proposed rules were in fact approved.
    Three highlights of the text published in the Federal Register include the following:
    1. HUD reaffirms that it is the arbiter of Fair Housing Act rules for people with disabilities. The Department of Justice, which administers the Americans with Disabilities Act (ADA) has different rules related to “public accommodations”. HUD establishes rules relevant to housing consistent with the Fair Housing Act. The rule approval discusses HUD’s authority at length.
    2. Per HUD, the Fair Housing Act does not require a person to be certified as disabled to have a right to an emotional support animal in their home. In contrast, per ADA, a person may need to be certified as disabled to have a right to certain accommodations such as having an assistive animal in an airplane, store, or other public accommodations.
    3. Per HUD, the Fair Housing Act does not require an emotional support animal to have special training. The intrinsic nature of the animal is the source of the emotional support – no special training required. In contrast, under ADA, a service animal may be required to receive or demonstrate special training.
    From my experience, the key to a successful request for a “prescription pet” is for the health care provider to specify in writing that he/she is “prescribing” the assistive/emotional support animal as a “necessary component of ongoing treatment”. The exact wording of the letter is of the utmost importance; many people have faced fierce opposition from condo and homeowner associations. In the past, many battles were lost when the wording of the health care professional’s letter did not precisely meet the Fair Housing standards. Therefore, it is critical that people be well informed, or consult with an attorney experienced in this field, before they attempt to exercise their rights in this regard. In some cases, inexperienced and uninformed attorneys have been known to do more harm than good .
    In Palm Beach County, the Office of Equal Opportunity will help people who are being denied their Fair Housing rights in this regard. They are well-experienced and fully informed.
    Also, I have sample letters that I would be happy to share with anyone in need. They may contact me at Barbara_Feeney@hotmail.com
    Last year, Palm Beach County Animal Care and Control euthanized at least 18,000 healthy, but homeless, animals – most of whom were cats. If only 1.3% of Palm Beach County residents adopted a homeless cat, we could end this tragic situation.
    I would greatly appreciate if you would investigate the new HUD rules to confirm what I have written and then publicize this information in a user-friendly format that would enable and encourage people to exercise their rights in this regard. Please feel free to contact me if I can be of any assistance.
    Again, thank you for the important service you provide to our community.
    Sincerely,
    Barbara Feeney

  • Mark
    March 28, 2009

    Although I appreciate that a pet can provide comfort and perhaps some medical benefit to some people, any accommodation requirement should consider the impact on other residents. I know that for various reasons, some people intentionally look for a home in a no pet community. My wife, for instance, is afraid of dogs and a neighbor has a serious cat allergy.
    It is ironic that in requiring an accommodation of a pet to enable a disabled person to more fully engage in a major life activity that the accommodation may result in restricting a neighbor’s ability to engage in a major life activity. To the extent that an accommodation would be required under the law, there should be some constraints on the form of the accommodation. Should someone be allowed to have a potentially unsafe animal such as a pit bull or, as the woman in the news recently, be allowed to have a horse in a condo association?

  • Barbara Feeney
    March 31, 2009

    Dear Mark,
    Your comments raise the age-old question of how to justly resolve competing claims. To do so, we need look no further than our majestic Constitution, Bill of Rights, and ever-evolving system of laws and law enforcement.
    Regarding the issue of reasonable accommodation, as with every public policy issue, the law must balance a broad range of competing claims of rights and responsibilities. Our founding fathers well understood the complexity of human nature when they bravely and boldly crafted and ratified our Constitution, thus bequeathing to us a glorious guide to justice.
    In time, and consistent with the United States Constitution, the great State of Florida followed suit and adopted its own Constitution which enumerated basic rights such that, “…All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property.” We, in turn, are called to reason together through each public controversy in order to ascertain the just and proper role of the government (E Pluribus Unum) in protecting the constitutionally enumerated rights of all Americans – including, of course, all Floridians.
    Meeting the challenges implicit in striking a just balance between individual rights and mutual responsibilities is the honorable duty of us all. Claims based merely on the “majority of owners” must never be allowed to trump the carefully crafted Constitution and Bill of Rights by which all Americans, including minorities and persons with disabilities, are ensured protection against tyranny imposed by any individual, group, or branch of government – or by any community association.
    Despite rumors to the contrary, the Constitutions of Florida and of the United States must surely apply to all Floridians – whether they reside in an orange grove along the Indian River or a condominium in Boca Raton. Clearly, homeowners from sea to shining sea are entitled to enjoy peace, privacy, and freedom from tyranny within the privacy of their own homes. Beyond a shadow of doubt, it was never the intent of the Florida Legislature to grant community associations the authority to deny the owners of condominiums civil rights and liberties guaranteed to all Floridians by the Florida and U.S. Constitutions.
    Thus, issues related to animals (i.e., pets or assistive animals) in community association housing should properly be considered within the context of competing claims of constitutionally protected rights and mutually held responsibilities.
    Protections and limitations (regarding animal care and control) already include extensive federal, state, and local laws – properly legislated, implemented, and adjudicated – to balance the rights and responsibilities of animal owners and homeowners. If any animal should cause a nuisance, remedies are already available – within the context of duly enacted laws and rules. Furthermore, there are already legally established limits on the types of animals allowed in residential zones. Additionally, laws related to proper animal health care and hygiene are already well-established and enforcement mechanisms are in place. As medical and veterinary sciences identify improvements regarding health care for humans and animals, the protocols to modify relevant laws to accommodate those findings are in place.
    The presumption that the mere presence of a “pet” or “emotional support animal” in a neighbor’s home constitutes a nuisance or infringement (when ownership of that animal is otherwise allowed under existing civil law) and therefore justifies pre-emptive denial of the neighbor’s right to animal ownership, constitutes a flawed justification for infringing on the legitimate rights of others.
    The injustice of such pre-emptive denial is compounded by an extremely asymmetrical imbalance of power and resources between an individual homeowner and a community association. Specifically, the homeowner must bear the costs and strain of litigating his plea for a waiver of the rules against the much greater resources and legal talent of the association. Mitigating the potential tyranny implicit in situations characterized by such a disparity in power is exactly the purpose of our carefully crafted Constitutional system. After all, the community association is a corporation – a creation of state law and as such, the state bears responsibility for ensuring that its implementation meets Constitutional muster and for mitigating, through legislation, any unintended consequences, especially ones that improperly and unjustly infringe upon civil rights and liberties.
    Were this not the case, all Florida corporations could claim exemption from conducting itself in a Constitutional manner by stating that they are a business, can do as they please, and can conduct business according to the will of a majority of their board and stockholders. Clearly, this is not the case. They must abide by a wide range of laws and rules and may be subjected to civil and criminal penalties if they do not. Simply stated, they may not violate the civil rights and liberties of their employees, their customers, their suppliers, or the general public with impunity – nor may community associations.
    Rather than pre-emptive denial of animal ownership, community associations should be encouraged to establish rules and procedures to prevent and mitigate animal-related conflicts – with the understanding that such remedies may not infringe upon the legitimate civil and property rights of others.
    As we approach the end of the first decade of the second millennium, many Americans are still compelled to struggle to enforce their rights to access Fair Housing.
    I will leave to another time a treatise on the ancient and priceless bond between man and God’s other creatures and man’s noble duty to protect them – to another day for a heartfelt plea for mercy for the thousands of helpless and innocent animals put to death for want of a home, and for the thousands of people who long for – indeed who need, the tender love of a companion animal. I trust that a compelling case regarding these issues is self-evident.
    Sincerely,
    Barbara Feeney

  • Magda
    April 28, 2009

    The problem allowing pets in Condominiums is that, most of the time, the person who’s claiming that need, is not taking care of it. They do not follow rules and regulations, and take the dog to the playground for their necesities. I do not think is fair to the rest of the community, and to the kids, to have that potential hazard on the grounds.It is really a shame, (and I like dogs), that , we do not get so much atention for the killing of, the unborn babies, and make a big deal about pets.

  • Ed and Diane Brandes
    November 3, 2009

    A person owning a pet is all well and good.
    However the owner must walk their pet on their own property
    and not be a nuisance to their neighbor.
    This is plainly spelled out in the documents.
    A resident without a pet is entitled to rights also.

  • jose periut
    November 12, 2009

    yes i moved into a condo that allows pets. at the time, i didnt have a pet but then i got 1 thinking they allowed pets. the ad in the paper said “pets welcomed”. later they (condo association)said new renters werent allowed to have pets. the ad had been posted by the owner and not the condo board. the condo owner doesnt care but the association is threatening to evict me if i keep the pet. btw everyone else has pets in the building.
    please help
    jose

  • Barbara Feeney
    December 15, 2009

    Jose
    Please contact me at Barbara_Feeney@hotmail.com. I am not an attorney, but I can share some helpful information with you.
    Barbara

  • Jason Smith
    June 22, 2010

    I own a townhouse in a community where there is a 250$ pet FEE thats non-refundable. I purchased in 2005 got the dog in 2008. the rule regarding the fee wasnt added till 2009. the board is after me for the 250. The dog is a service animal for emotional support and is registered. I have told them this several times they continue to get after me about it and are threatening to fine me “considerably” Suggestions?

  • Before everyone say, I have a hang-nail so I’m disabled and gets an ESA. Be sure your legal first.
    There are different classes of working dogs, service dogs and support animals. It is important to know the laws that affect each.
    An ESA is NOT a full service dog with the same rights.
    Just as a Therapy dog is neither a service dog or an ESA.
    If you are legally disabled, i.e. blind, deaf, or have a physical or mental disorder that is life limiting, you are disabled under the ADA and FL state law (FS 413.08). You may be entitled to a full ADA service dog that does tasks that you can not do for yourself.
    If your disability is not as severe as life limiting but still have a disability you may be entitled to a ESA (Emotional Support Animal).
    http://www.servicedogsfl.org/laws/hud.shtml
    ESAs are legal pets for the disabled in “no-pet” housing. They do not require training and all you need is a conforming doctors note.
    The owner/handler is responsible for the dog, including cleaning up after it. HOA’s can eject a misbehaving, unclean or threating dogs.
    ESAs may travel in the cabin of an airplane and travel (ADA Title II), they however do not have ADA Title III rights to be in businesses, resturants or other places that are “no-pets”.
    ADA Task trained service dogs have full rights, ADA I,II,III and can not be denied from most places, they can live where they want and go where they want without interference.
    It should be noted that claiming an untrained animal as a full service dog or claiming to be disabled when you are not is a felony. Full service dogs have thousands of hours of training.
    Therapy dogs work in hospitals and assisted living places, they are PETS and have no special rights outside of their work area.
    PET rules/deposits do not apply to ESAs or Service Dogs.
    If your neighbor has a severe allergy (disability) to dogs. The ADA & HUD say you both have to be accomodated and work it out between yourselves.
    Ken Lyons
    Trainer
    Service Dogs of Florida, Inc.

  • ALMA
    July 16, 2010

    I live in a no pets allowed community, but some have come in with a note from doctor, our community consist of space for cars to come in and park and the same space for cars is the one where you walk to get to your car or out to the walk-in gate. Please answer me, if a person is disabled don’t they have to walk their dog? If their disability does not let them, what then.? Looking forward to your answer.
    RESPONSE: There are many types of disabilities – some involve mobility impairments and some do not.

  • PATRICIA MYERS
    November 8, 2010

    IF YOU HAVE AN E-MAIL COULD YOU PLEASE SEND IT TO ME.
    THANK YOU FOR YOUR TIME.

  • PATRICIA MYERS
    November 8, 2010

    IF YOU HAVE AN E-MAIL COULD YOU PLEASE SEND IT TO ME.
    THANK YOU FOR YOUR TIME.

  • Mindy
    March 27, 2011

    I have had animals most of my life. I lost my job in November, and now have the oppurtunity to live in a 55+ community that doesn’t accept pets, the rent is inexpsive. i have a 20 pound pomeranian- about 9 0r 10 years old. BTW mostpet owners love their pets and take care of them- I am 58 years old – and have anxiety about having to give up my dog. It is not fair- so maybe someone can help me – I lost my job due to depression , anxiety after being there 4 years. I worked for the dr who fired me, and I have seen a therapist . Anyone who can give suggestions? This is in Florida