Jayne and Ed Elebiari said their dog “Pooky” helped them cope with the debilitating depression from which they both suffered, and asked the board of their condominium association to waive the community’s “no-pet” policy so they could keep their tiny companion. The board said no – a decision that cost the association $12,500 in damages, awarded by a court that found the association had improperly denied the Elebiaris’ request.
Following similar logic, a Michigan court ordered a cooperative community to pay $14,000 in actual damages and $300,000 in punitive damages for refusing to allow an owner to keep a dog she said provided her with essential emotional support. In both cases, the courts were interpreting the federal fair housing laws (and parallel laws in many states), which require homeowner associations to offer “reasonable accommodations” to residents suffering from a disability. The federal Fair Housing Act defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”
Problem or Pretext?
Most communities are aware that this law requires them to waive their no-pet rules to allow service animals for owners with physical disabilities — primarily owners who are blind or hearing-impaired. What these cases illustrate is that the law also requires accommodations for owners suffering from emotional disabilities that while less visible, may be equally incapacitating. The obvious problem for communities is how to distinguish between the legitimate requests of owners who require the emotional support a “comfort animal” provides, and the requests of owners who want to acquire a pet or keep one, and are trying to get around a rule prohibiting them from doing so. What is to prevent any owner who wants a pet from claiming to have an emotional illness that requires the association to accommodate their request?
That’s a good question and a legitimate concern, especially since the courts in some jurisdictions, although by no means all of them, have been sympathetic to requests for emotional support animals. That these disputes often center on requests to keep animals owners already possess rather than to acquire pets they would like to own, simply complicates the discussions and intensifies the emotions involved. Associations should tread carefully in this area, and only after obtaining legal advice.
That said, associations can challenge a request for a comfort animal on only two grounds:
- Because the owner has not proven the existence of a disability for which the law requires an accommodation; or
- Because the requested accommodation is not reasonable.
If the association challenges a request, the burden of proof is on the owner to prove that he/she is disabled and that the requested accommodation is reasonable.
Establish a Process
Even if your community has never had to consider a request for a comfort animal, the odds are reasonably good that you will at some point, so you should have in place a process for reviewing these petitions. That process should require owners to submit their request in writing and to provide a letter from a physician or therapist describing the nature of their disability and explaining precisely how the pet they are requesting will help them cope with the limitations their disability creates.
The law restricts how much medical information you can demand. You can’t require a comprehensive medical history, a detailed analysis of the owner’s emotional problems, or a description of the treatment the individual is receiving. However, you can insist on enough information to verify that the disability meets the legal standard of an impairment that “substantially interferes” with the owner’s ability to function. You can also require evidence of a connection between the disability and the pet the owner is requesting. How exactly will a boa constrictor help Mr. Jones cope with his bi-polar disorder? Why does Mrs. Smith need a Great Dane to ease the symptoms of her depression? Wouldn’t a Chihuahua do as well? And how many animals can an owner require as a necessary accommodation? If the owner says he needs three dogs and four cats to provide adequate support, can the association insist that the owner will have to make do with one pet (or one of each) instead?
Unfortunately, there are no bright legal lines in this area and no way to predict how courts in any one jurisdiction will respond to a specific request. However, associations can insist on a reasonable balance – or at least, on some balance – between the needs of a disabled owner and the safety and comfort of other residents. This means that associations could:
- Require owners to keep their animals either in their units or on leashes at all times.
- Bar animals (within reason) from lobbies and other common areas.
- Prohibit breeds recognized as “vicious” (although a disabled owner who already owns a “vicious” animal will almost certainly fight any effort to force its removal).
- Require owners to care for their animals and clean up after them.
- Require owners to obtain and show proof of liability insurance to cover property damage or injuries to others caused by their animal.
- Insist on the removal of an animal that threatens or disturbs other residents, for example, by barking incessantly or lunging at passersby.
The restrictions the association imposes on comfort animals must be reasonable, however; the association cannot create hurdles that would prohibit owners who qualify for comfort animals from obtaining and keeping them. While you could certainly require owners to pay for any actual damages their pets cause, imposing an advance fee to cover anticipated damages probably pushes the boundaries of what a court would view as reasonable. The Bazelon Center for Mental Health Law suggests that this would be the equivalent of requiring a deposit from an owner in a wheel chair to cover anticipated damage to common area carpeting. Courts are likely to frown equally on both.
One interesting and unresolved question is whether pets must be specially trained to qualify as comfort animals. In the Elebiari case described earlier, the court ruled that “Pooky did not need special skills to help ameliorate the effects of the [couple’s] disabilities…it was the innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans, that made it therapeutic here.”
The Seventh Circuit Court of Appeals and a U.S. District Court in Oregon have set a similarly relaxed standard for defining comfort animals, ruling that they need only be “individually” trained (by an owner, but not necessarily by a professional trainer), and that they must “work for the benefit of an individual with a disability.” The West Virginia Supreme Court was considerably more demanding, ruling in a 2001 case (In re Kenna) that because a conventional service animal (a guide dog for the blind or an assistance animal for someone with physical impairments) must be “specially trained” for its work, “certainly some type of training is necessary to transform a pet into a service animal” for individuals with emotional disabilities.
A Hawaii court ruled similarly in a 2003 case (Prindable v. Association of Apartment Owners of 2987 Kalakaua) that an animal must be “particularly suited to ameliorate the unique problems of the mentally disabled.” Both of these cases rejected the notion asserted in Elebiari and embraced by several other courts, that the innate capacity of dogs to offer unconditional love qualifies them to provide emotional support. “Although this may well be true,” the Hawaii court acknowledged, that reasoning makes it impossible to set reasonable limits. “Every person with a handicap or illness that caused or brought about feelings of depression, anxiety, or low self-esteem would be entitled to the dog of their choice, without individual training or ability. And if certain people liked cats, fish, reptiles, or birds better than dogs, there would be no logical reason to deny an accommodation for those animals. The test would dissolve from ‘individually trained to do work or perform tasks’ to ‘of some comfort.’”
Litigation in Prindable is still ongoing, and the association has allowed the owner to retain the pet pending the outcome — a strategy that allows the board to continue the fight while limiting potential damages should the association ultimately lose.
Communities that refuse requests for comfort animals obviously do so at some financial risk, as the examples cited earlier illustrate. Associations should seek legal advice on the policies they establish as well as on their handling of specific accommodation request. Before challenging a request, you will want to consider, among other factors, how courts in your jurisdiction have ruled in cases involving comfort animals, the likelihood that you will prevail in the litigation, and the legal costs you will incur even if you do.
Given the complexities, sensitivities, and potential liabilities in this area, it is often best to err on the side of being too flexible rather than too rigid. As with the enforcement of all rules, consistency and transparency are essential in handling requests for comfort animals. Associations should establish clear procedures and follow them, administer their policies even-handedly, and document their decisions and their decision-making process. These measures won’t prevent you from being sued (no antidote on earth will do that), but they will reduce your litigation risks and strengthen your defenses if you end up in a legal battle over whether the emotional disability an owner is claiming merits a comfort animal, or is simply a pretext for owning a pet.