In a previous post, we discussed Dexter the (almost) flying emotional support peacock. In this post, we turn our attention to Maybelline the emotional support pig in the great state of Florida. Maybelline is at the center of a dispute between her owner and her owner’s HOA. The owner claims that she suffers from certain conditions with which Maybelline helps, as an emotional support animal. The HOA has notified the owner that Maybelline is “livestock,” the presence of which the HOA’s governing documents prohibit.
So who is right? Under certain circumstances, Maybelline may be allowed to stay. This post will focus on the legal background surrounding community associations and emotional support animals.
The Applicability of the Fair Housing Act to Community Associations
The federal Fair Housing Act (the “FHA”) and the states’ fair housing laws serve as the bases for emotional support animals. The FHA is a broad federal statutory framework that protects individuals from discrimination in renting, buying, or financing any housing. The FHA also applies to the terms and conditions of housing or the provision of services or facilities related to such housing. The FHA protects people with “disabilities.” Under the FHA, a “disability” means a mental or physical impairment which substantially limits a person’s major life activity, a record or history of possessing an impairment, or being considered as possessing such an impairment.
The FHA has been held to apply to housing providers, entities that set the terms and conditions of housing, and entities that provide services and facilities related to housing. Community associations have been held to be subject to the FHA. Claims under the FHA typically involve issues relating to the community pool or clubhouse.
The FHA provides substantial remedies to those individuals whose rights under the FHA have been violated. FHA violations can result in compensatory and punitive damages as well as awards of attorney’s fees.
What are Emotional Support Animals?
Emotional support animals have been considered to constitute “reasonable accommodations” for individuals with disabilities. Emotional support animals are considered to lessen some of the difficulties presented by their disability.
Unlike “service animals,” a category which is limited to dogs, other animals may qualify as “emotional support animals.”
To claim entitlement to an emotional support animal, the owner must credibly confirm the claimed disability and how the animal lessens some of its effects. If the owner is unable to provide such credible documentation, he or she may request additional information from a reliable third party who is in a position to know about the homeowner’s disability. Such written certification must generally be from a person with a “therapeutic relationship” with the person claiming entitlement to the emotional support animal. Typically, this certification will state the person has a disability that is assuaged by the presence of the emotional support animal.
An emotional support animal claim typically follows this pattern. First, an owner claims to have an emotional support animal. Second, the community association reviews the applicable certification and conducts any additional investigation. Third, after finding that the animal is indeed an emotional support animal, the community association provides a “reasonable accommodation” to the owner by not enforcing a restrictive covenant or provision that would otherwise prohibit the animal (such as a restrictive covenant prohibiting “livestock” or “unconventional pets” in the community).
Limits on Emotional Support Animals
While the federal and state fair housing laws provide the legal authority for emotional support animals in certain circumstances, these laws do not provide carte blanche for such owners. Emotional support animals cannot be a danger to community residents or property. Owners must follow basic pet regulations such as those relating to clean-up and leashing. Owners will also be responsible for property damage or injury their emotional support animals cause.
Perhaps due to some criticism surrounding generic online emotional support animal certifications, Virginia’s Department of Professional and Occupational Regulation has promulgated some administrative guidance on the issue of emotional support animals. This guidance explains the parameters for seeking additional information from a person claiming entitlement to an emotional support animal. As mentioned above, housing providers may seek “reliable disability-related information” to demonstrate the disability of the person, to elaborate on the need for the accommodation, and to show how the accommodation relates to and will work to lessen the disability’s effects. The guidance makes clear, however, that housing providers should not typically seek medical records or details about the severity of the disability. Moreover, the guidance stresses the importance of information concerning the inquiry remaining confidential.
The legal landscape surrounding emotional support animals is rapidly changing. Emotional support animals present a variety of complicated legal issues for community associations. A community association’s failure to comply with applicable federal and state laws may result in civil liability. To minimize legal risk, each community association should work with its legal counsel to develop a plan for analyzing and handling emotional support animal claims.