Carl Finger, Principal, Finger & Finger in Legal/Financial
The demand for emotional support animals (ESAs) can present challenges for co-op and condo boards, particularly in buildings with strict no-pet policies. The key to addressing ESA requests lies in recognizing the distinction between an ESA and a pet. Unlike pets, ESAs serve as therapeutic companions for individuals with disabilities and are protected under the Fair Housing Act and Americans with Disabilities Act. To qualify for an ESA, individuals must demonstrate that they have a disability and require the animal for emotional support to fully use their living space. Proactive management and effective communication is key in addressing these complex issues.
Required documents. Boards should establish clear policies outlining the documentation required for ESA requests. Typically, this involves medical documentation or a letter from a qualified service provider confirming the need for an ESA. Because verifying the legitimacy of documents is obviously important, boards can consult with either their property manager or with counsel. Doing these investigations earlier rather than later will enable the board to get legal advice in a timely manner. There’s no specific window in which this issue must be dealt with, but a prompt response to an ESA request can help avoid misunderstandings or complaints arising from delays. If someone has a dog openly in the building for more than 90 days and no objection or court filing is made, they are typically allowed to keep the dog whether they have a disability or not. Then again, failure to respond promptly to an ESA request may be perceived as a denial, potentially resulting in legal action against the board.
Handling challenges. Boards may encounter challenges when accommodating ESAs, especially in buildings with no-pet policies. One example was a unit-owner who walked an ESA in an area where children commonly played. The person was asked to walk the dog elsewhere and made a complaint on the grounds of human rights. Because the unit-owner didn't require an accommodation for walking the dog in the play area, and the board had good documentation of the situation, the complaint was dismissed.
When it comes to noisy or aggressive dogs, leveraging existing bylaws and lease agreements to enforce rules and regulations can also ensure ESA owners adhere to community standards. In an example where there were persistent violations by a shareholder, the board took steps to terminate the lease. An appraisal was done and the co-op actually bought back the unit. This ended up being beneficial to everyone, because the shareholder received the value of the unit without having to get a broker or pay a broker's commission. The board was able to resolve what was clearly going to be a time-consuming and lengthy litigation without legal expenses. Alternative solutions might involve requiring training programs for animals, with consequences in place if that doesn't help.
Going to court. Faced with persistent violations or disputes related to ESA accommodations, boards may need to consider legal recourse. Litigation should be a last resort, but it may be necessary to protect the rights and interests of all shareholders and unit-owners. h. Direct communication helps, because if people don't communicate, you can't reach a resolution. And if you can get to a resolution short of litigation, that's always beneficial.