Is Relief for Fraudulent Emotional Support Animal Accommodation Requests on the Horizon?

As so many community associations have encountered first-hand, the Florida and Federal Fair Housing Acts (FHA) require condominium and homeowners associations to grant exceptions (or a waiver) to pet restrictions in order to allow a person with a disability to keep an animal which alleviates one or more symptoms of that disability, but would otherwise be prohibited by its pet restrictions. Rules that an association may need to waive under these laws include breed restrictions, weight restrictions, limitations on the number or types of animals that may be kept or even outright prohibitions on animals in the community all-together.

Associations are required to verify to a limited degree that a person is disabled, as defined in the law, and that the animal alleviates one or more symptoms of that disability, before a waiver is granted. That verification and entitlement to a waiver can be relatively straightforward in many instances, particularly for disabilities that are obvious.

However, requests for “emotional support animals” (ESA’s) pose more challenges to an association seeking to verify an individual’s entitlement to the waiver. ESA’s are often not specifically trained to perform any particular task but provide much needed emotional support to a person suffering from a very real, yet perhaps a less obvious disability, such as an emotional, mental or psychiatric disability (anxiety, depression or PTSD, for example).

Unfortunately, in the view of many, some have taken advantage of these challenges that exist in evaluation of ESA requests – resulting in abuse of the laws both by persons attempting to sell ‘certifications’ or ‘registrations’ for emotional support animals to those seeking the accommodation, as well as abuse by persons who do not actually have a disability fraudulently claiming such a disability to evade a community’s pet restrictions. Further, confusion in the application of the various laws that could apply to animals in the housing context, such as the Americans With Disabilities Act, have led some to wrongly conclude that ESA’s must have some type of certification or training to qualify for a waiver under the FHA.

Recent developments both federally and locally on the topic of ESA’s have occurred in response to this confusion and concerns of abuse.

At the federal level, in November of last year, the Secretary of the U.S. Department of Housing and Urban Development (HUD) requested the US. Federal Trade Commission to investigate websites that may be both misleading consumers with disabilities into purchasing assistance animal documentation, including ‘registrations’ and ‘certifications’ that are unnecessary under the FHA, as well as selling assistance animal documentation to people who do not have a disability.

Further, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) just released FHEO Notice 2020-01 (Notice) which includes a document entitled, “Guidance on Documenting an Individual’s Need for Assistance Animals in House,” which is intended to provide guidance to both housing providers and requesters in complying with the FHA when assessing these types of accommodation requests. While the Notice replaces some prior guidance documents issued by HUD on the topic and so contains some information which previously existed, just a few of several important take-aways from the Notice include the following:

• Documentation from the internet alleging certificates, registrations or licenses for assistance animals are not, by themselves, sufficient to establish a disability or need for an assistance animal. However, notes from a health care professional delivered over the internet can be sufficient.
• Associations should not, simply because of the type of animal, deny a request for an accommodation to keep a “dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.”
• If a requester is requesting a unique type of animal, other than those listed above, then the requester “has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” Examples of where such unique animals may nonetheless be necessary are where the animal is trained to perform tasks that cannot be performed by a dog, a health care professional confirms that allergies prevent the requester from using a dog or without the animal the symptoms or effects of the requester’s disability will be significantly increased, or where the requester seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.

At the state level, House Bill 209 and companion Senate Bill 1084 have been introduced in the Florida Legislature, which we have been watching closely. These proposed laws in their present state, currently undergoing committee review, assist those seeking legitimate accommodations for ESA’s by defining an ESA under Florida law (to include an animal that does not have any specific training to perform special work or tasks), specifically requiring housing providers to grant accommodations for ESA’s under Florida’s Fair Housing Act, and prohibiting housing providers from charging any fees relating to the ESA.

The bills also attempt to alleviate some of the perceived abuses of the laws by expressly authorizing providers to request documentation from a licensed health care practitioner to verify the disability, but prohibiting any such documentation to come from a practitioner that was hired exclusively to provide that documentation and not otherwise treating the individual making the request. In addition, the bills would make it a misdemeanor crime to falsify documentation or otherwise misrepresent information in support of an ESA request. Further, the bills would exempt housing providers from liability for damages caused by an otherwise properly approved ESA.

Whether these developments will result in effective change or real benefit to Florida community associations is yet to be seen – we will continue to monitor these and other developments as they progress. In the meantime, associations presented with a request for an accommodation, should consult with a qualified attorney to assist in your evaluation of that request.