HOA Q&A: Must homeowner associations allow 'emotional support' pets in a no-pet community?

Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

Q:  We are a no pet community, and some short-term renters are bringing a dog and claiming the dog is an emotional support animal.  The tenant emailed us a certificate stating that the dog is registered as a service animal.  Do we need to allow this exception? L.D., Treasure Coast

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A: I would need to know more to properly answer the question, but the most likely answer is no, you would not be required to allow this exception based solely on these facts.

Initially, it is important to understand that there are two different laws potentially at play here.  There is the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA).  Most private condominium associations are not subject to the ADA because that law, in this context, would apply to public accommodations.  Most private condominiums are private residential communities and therefore are governed only by the FHA.  The analysis on which law applies can be cumbersome so you should not assume that you are exempt from the ADA just because you are a residential condominium, and I would recommend you consult a licensed Florida attorney to help you through this analysis.

The applicable law is important because a certificate printed online indicating that the dog is a service animal implies that the dog is registered as an animal under ADA and thus it may be inapplicable even if it is reliable.  That being said, most certificates of registration that I have viewed are not reliable.  Most of them permit the pet owner to pay a fee and obtain a certificate and a badge and do not involve any independent verification.  In other words, most of these websites require the individual to certify that he/she is disabled and requires an assistance animal without any verification by a health care professional.  As the industry for emotional support registrations has evolved, however, there are now packages available where you can pay a bigger fee and have a phone or online consultation with a health care provider in a different state and they provide a semi-custom letter.

This analysis has recently evolved.  First, the U.S. Department of Housing and Urban Development has recently released some position statements in which it finds that some internet-based documentation is unreliable as a basis to determine if an individual is entitled to an accommodation under the Fair Housing Act.  Specifically, the publication states that in “HUD’s experience, documentation from websites that sell certificates, registrations, and licensing documents and animal gear for animals to anyone who answers certain questions or participates in a short interview and pays a fee is not sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”  This is mirrored in recent Florida legislation providing that out-of-state practitioners may provide supporting information if “such out-of-state practitioner has provided in-person care or services to the tenant on at least one occasion.”

We have known for some time that condominium and homeowners’ associations are permitted to request reasonably reliable documentation from a health care provider when the disability is unknown.  This shift, however, seems to now focus on whether the health care provider has sufficient “personal knowledge” to provide an opinion.

I agree with the advocates who promote emotional support animals as a viable and necessary medical tool.  Unfortunately, we also routinely encounter abuses of these laws from people who just want to bring their pet.  These recent shifts will change each analysis and each request should be reviewed on a case-by-case basis and reviewed by a Florida licensed attorney.

Based on the above, however, the short answer to your question would be that the certificate, in itself, would not be sufficient to require an exception to your pet rules.

Destiny Goede, Esq., is an Attorney at the Law Firm Goede, DeBoest & Cross.  Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Must homeowner associations allow 'emotional support' pets?