I have written a number of articles about whether a condominium or homeowner association (or apartment owner) needs to allow emotional support animals. Delta airlines new policy related to service and emotional support animals created some controversy and was heavily reported in national news. As service and emotional support animals become more commonplace, questions keep coming up, and so associations need to be reminded of what to do when a resident wants to keep a support animal.
To review, there are two federal laws to follow: the Americans With Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). The ADA says that a service dog is permitted in all public places. A service dog is an animal that is specially trained to perform a task that is directly related to a person’s disability. Under the FHA, providers of housing – like a landlord of condominium association – need to provide reasonable accommodations for assistance animals. Unlike a service dog, an “assistance animal” does not need to be specially trained to perform a task. They can provide only emotional support for a person with a disability. The definition of assistance animal or emotional support animal is much broader than a service animal under the ADA.
In Baird v. 1600 Church Road Condominium Association, a unit owner claimed that she needed her two Chihuahuas as emotional support animals. She said that she needed them for panic attacks, and that the dogs helped her sleep. All of these emotional support animal cases have a weird twist. This one is no different. The unit owner claimed she had a doctor’s letter that recommended her emotional support animals for her disability. The association did not have this letter. At trial, the unit owner produced the doctor that treated her for the panic attacks and recommended the emotional support dogs. Unfortunately for the unit owner, the doctor could not remember a thing about her.
Procedurally, the unit owner claimed the condominium association violated the ADA. The Court struck this down, because the two Chihuahuas were not service animals. They were not trained to perform a specific task that was directly related to the unit owner’s disability. The Court also said the unit owner would have lost under the FHA. The Court said that there was no proof that the unit owner had a disability. There were no medical records or testimony that showed that the unit owner’s panic attacks substantially limited one or more of her major life activities. Without a “disability” there is no need for an emotional support animal.
It is very easy to fulfill the requirements for an emotional support animal. A person can go online and “interact” with a doctor who will diagnose the person’s disability and recommend an emotional support animal to treat it. For a fee, the doctor will provide written documentation of the need for an emotional support animal. When this happens, an association is required to make a reasonable accommodation to permit those animals. In this case, the unit owner failed to do even this simple step. The take away from this case is that when faced with a request for an emotional support animal, the association needs to make sure the unit owner checks all the legal boxes for their request.
Aaron Marines is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and practices in a variety of areas including Commercial and Residential Real Estate, Land Use, Land Planning and Zoning matters.