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Tenants Can Claim Support Animal Rights

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Q: Our condominium documents do not permit renters to have pets. A new short-term renter in my building has a dog. When I asked the management company, I was shown a certificate for an “emotional support animal” that can be purchased online.  It is my understanding that “emotional support animals” can only break a “no pet rule” at one’s permanent place of residence. Is that true? (K.T., via e-mail)

A: Although your association has a “no pet” policy for renters, qualifying support and service animals are not “pets.”  The federal Fair Housing Acts (“FHA”) and parallel state laws require a “reasonable accommodation” to an association’s rules, policies, and procedures to allow a person with a physical or mental disability that substantially impairs one or more major life activities an equal opportunity to use and enjoy the dwelling unit.

An association is required to make a reasonable accommodation in situations where the disability is either openly obvious or properly documented and the relationship between the disability and the need for the reasonable accommodation is properly established. This is true whether the requesting party is a renter, unit owner, or guest.

In order to be entitled to an accommodation under the FHA, unless a disability is obvious, a medical professional or other qualified person must establish that the requesting party has a disability/handicap, as that term is defined in the FHA.  The documentation must show which major life activities are impaired and establish how the accommodation ameliorates the symptoms of the disability.

The liability for failing to comply with the many legal requirements of the FHA are significant.  For example, an unreasonable delay in responding can be asserted as a “constructive denial.” Further, even if the requesting party has not provided all required information, the association must still usually engage in an “interactive process” before the outright denial of a request. For these reasons, it is important for associations and their legal counsel to carefully review any submitted requests and supporting documentation.

This is a confusing and often frustrating area of the law for many associations. It does appear that there is significant agreement by professionals in the field that many persons with legitimate disabilities benefit from service and support animals.

However, there are clearly situations where persons without disabilities have sought the protections of these laws in an effort to keep their “pets.”  There are websites that sell “emotional support animal” certificates. In some cases, websites simply require a short survey to be filled out, and in return, documentation is provided for a stated fee.

The concerns related to some of these websites prompted Secretary Ben Carson of the U.S. Department of Housing and Urban Development (“HUD”) to issue a letter to the U.S. Federal Trade Commission (“FTC”) dated November 6, 2019 requesting that the agency investigate whether websites that sell assistance animal registrations or certificates violate FTC regulations or any other authority the FTC is empowered to use to protect the public from deceptive business practices.

At the state level, House Bill 209, currently pending before the Florida Legislature, would make it a misdemeanor of the second degree if any person falsifies written documentation for an emotional support animal or otherwise knowingly and willfully misrepresents themselves as being qualified to use an emotional support animal. HB 209 also addresses the quality of the written documentation that must be submitted from the health care provider in support of the request for accommodation. If passed, this Bill would prohibit letters prepared by health care practitioners whose exclusive service to the person with a disability is preparation of the document in exchange for a fee.

I would also point out that most documents and communications related to support or service animal requests involve confidential medical information and should not be shown to other unit owners unless the association’s legal counsel has specifically advised that disclosure is permissible.

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