In an age of increasing global anxiety over any number of potential disasters, one can be forgiven for seeking comfort where they can get it. And for some condominium and cooperative residents, that comfort takes the form of an emotional support animal.
According to the ADA Network, emotional support animals are not considered service animals (unlike seeing-eye dogs, for example) under the Americans with Disabilities Act (ADA). Rather, “support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities...Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning.”
In the context of housing, particularly under the Fair Housing Act (FHA), says the ADA Network, “A landlord or homeowner’s association must provide reasonable accommodation to people with disabilities so that they have an equal opportunity to enjoy and use a dwelling... an individual with a disability who requests a reasonable accommodation may be asked to provide documentation so that the landlord or homeowner’s association can properly review the accommodation request.”
As the concept of an emotional support animal is still a relatively modern one, people have taken to interpreting it in some rather interesting ways. A man reportedly is facing eviction from his Clearwater, Florida condominium due to his unwillingness to part with his emotional support rescue squirrel, Brutis. Ducks and turkeys have recently taken to the friendly skies, rattling some plane passengers who are more oriented to seeing mostly humans on commercial airlines. Even pigs, monkeys, snakes and kangaroos have joined the ranks of creatures supposedly providing comfort for their human companions in exceedingly public places.
So the issue that presents itself is where – and how – to draw the line in a way that protects those with disabilities who truly need these animals and those with whom they cohabitate who have a right not to be confronted with a raccoon or some such in the lobby.
It's All Gone to the Dogs
In New York and New Jersey, much of the conflict surrounding emotional support animals arises not from the exotic nature of the pets involved, but in the gray area between prioritizing the needs of the pet owner and preserving the sanctity of an association with no-pet policies or pet limitations.
As Marc H. Schneider, a partner with law firm Schneider Buchel LLP in Manhattan, points out, oftentimes someone will bring an animal into a pet-free building, or exceed a written pet limit. Then when caught, they will claim retroactively that the offending animal is of the emotional support variety. “The law doesn't penalize someone for lying regarding the necessity of an animal for emotional reasons, so they're willing to risk it,” Schneider says.
Sometimes it appears as if owners or shareholders are using the emotional support animal designation to test the limits of an association's commitment to its rules. In these situations, a board must tread carefully to avoid infringing upon a resident's rights.
“I used to run a pet-free condo in Greenwich, Connecticut,” recalls Robin Steiner, President of RMR Residential Realty in Elmsford, New York. “Before I'd started to work with the association, a stock trader who had lived there for two or three years got a dog, unbeknownst to anyone. Then he went ahead and got a second dog, this time with a letter from a pediatric physician's assistant saying that he needed it for emotional support. The board went against the advice of counsel and pursued this guy. And the result was that the board – and myself – had to take a course on discrimination. Racial, sexual, housing... the whole nine yards. As a long-haired hippie liberal from the '70s, I found it really embarrassing.”
In some cases, however, the owner or shareholder may stretch others' sympathies until they break. “I had a case at a New Jersey condo where the resident claimed to be unable to live without a dog that had been with his brother for two years prior,” says David J. Byrne, an attorney with the community association practice group at Ansell Grimm & Aaron PC in Princeton, New Jersey. “But the condo didn't give him an inch, and the state's civil rights bureaucrats had no idea how to proceed.”
And then there are just situations where the strategy seems to be to confuse everyone so much that the powers-that-be throw up their collective hands.
“I remember a case in a building that allowed residents a single pet,” says Stewart E. Wurtzel, a partner with Tane Waterman & Wurtzel, P.C., a law firm in Manhattan. “And a particular resident who had one dog [and] then got a second, submitting two veterinarian notes that stated the first dog was neurotic and needed to be calmed by the other dog. So the second dog was effectively the emotional support dog for the first dog. And I can't tell you how any of this would play out legally, because the board basically opted to not even deal with the city's Commission of Human Rights on this.
Wurtzel adds that as the veterinarian letters made no real reflection on the human resident, he personally does not believe that there is any reasonable interpretation of human rights law that would require the building to make accommodations for that second dog. “And saying that a dog needs an emotional support pet to function... what's its function other than being a dog? When the request came in, I had to give this individual credit. It was ballsy. This was a fairly large building that had dealt with the Human Rights Commission before, and it's pretty telling that the board opted not to take the chance that the commission would decide that animals may require emotional support animals of their own. That says something as to how people feel about which way the agency will lean on this stuff.”
The lesson from all of this? Before taking any action on whether or not to allow an emotional support animal in the building, consult with an attorney first.
Mike Odenthal is a staff writer at The Cooperator.