For many years, service animals and emotional support animals (“ESAs”) have been the subject of controversies and disputes between unit owners and community associations. Under the Federal Fair Housing Act, as amended, and guidelines promulgated by the Department of Housing and Urban Development (“HUD”), community associations have been required to make reasonable accommodations for service animals and ESAs provided that certain criteria are satisfied.
Now, in its FHEO Notice: FHEO-2020-01 issued in January of 2020, HUD draws a distinction between animals commonly kept in households (i.e., dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, and turtles) and “unique” animals (reptiles other than turtles, barnyard animals, monkeys, kangaroos, and other non-domesticated animals). HUD notes that animals commonly kept in households serve a pleasure purpose, not a commercial purpose.
Steven L. Sugarman, Community Association LawUnder HUD’s guidelines, if an ESA is an animal commonly kept in a household, a reasonable accommodation should be granted as long as information that confirms the disability‐related need for the particular ESA has been provided to a community association. However, if an ESA is a “unique” animal, the requesting party has the substantial burden of demonstrating the disability-related need for the particular ESA. HUD encourages requesting parties to gather reliable documentation from a health care professional, confirming the disability‐related need for the particular ESA, because a lack of reliable documentation may constitute grounds for a community association to deny a requested accommodation.
Reliable documentation from a health care professional should include the date of the last consultation with the patient; any unique circumstances justifying the patient’s need for the particular ESA (if already owned) or a type of ESA; and whether the health care professional has information about the particular ESA, or whether the health care professional specifically recommends a type of ESA.
In summary, it is not so much the uniqueness of an animal that is dispositive; rather, it is how well the requesting party is able to document and demonstrate the circumstances justifying the need for a unique emotional support animal. As a general rule, reasonable accommodations may be necessary when:
- A unique ESA is individually trained to take a specific action or perform a specific task that cannot be performed by a dog
- Information from a health care professional confirms that allergies prevent the requesting party from using a dog, or, without a unique ESA, the symptoms or effects of the requesting party’s disability will be significantly increased
- The requesting party seeks to keep a unique ESA outdoors at a house with a fenced yard, where the unique ESA can be appropriately maintained
However, HUD makes it clear that a community association may deny a requested accommodation if a unique ESA poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions taken to maintain or control the unique ESA, such as keeping the unique ESA in a secure enclosure. As can be seen, determining whether a reasonable accommodation should be granted will be greatly dependent upon the specific facts and evidence adduced by the parties. As of now, there is a paucity of cases decided nationwide under HUD’s relatively new Notice, but that is likely to change.
Steven L. Sugarman is a partner at Gawthrop Greenwood, PC and a nationally recognized community association law attorney who has played a critical role in establishing statutory and decisional law governing Pennsylvania’s common interest communities (CICs). As the chair and active member of the Community Association Institute’s (CAI) Legislative Action Committee for many years, Sugarman drafted and advocated for key amendments to Pennsylvania’s statutes as community associations have evolved into the fastest-growing form of housing. He also serves as an expert witness on community association matters brought before Pennsylvania’s courts and General Assembly. A member of the prestigious College of Community Association Lawyers since 2000 and a past president of CAI’s regional chapter, Sugarman developed and teaches one of the few law school courses nationwide on condominium and homeowner association law as an adjunct professor at the Villanova University Charles Widger School of Law. He is a frequent lecturer at the local and national levels on real estate and community association matters. For more information, contact Steve at ssugarman@gawthrop.com or 610-889-0700.
