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Published in ALM/ Florida Daily Business Review

A right to an emotional support animal has been a heavily discussed topic for years, especially for certain extreme requests involving the use of an exotic animal for emotional support purposes, or when there is a claim that the emotional support animal needs its own emotional support animal, in a relatively clear attempt to circumvent community pet restrictions.

While a resident may request that a community association accommodate his/her disability by allowing him/her to keep an emotional support animal, there are numerous considerations to ensure compliance and protect rights under Fair Housing laws. In fact, complaints concerning the denial of reasonable accommodation and disability access comprise almost 60% of all complaints under the Fair Housing Act. Therefore, a frequent ask by my community association clients is how to appropriately respond to such requests.

Specifically, what type of documentation can be required of the resident for the association’s records to support a non-observable disability, and what is considered a reasonable accommodation, as required under the Federal and Florida Fair Housing Acts and Florida Statutes are routine questions for community associations.

Differences Between “Service Animal” and “Emotional Support Animal”

A “service animal” is not the same as an “emotional support animal” and has additional protections. A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.

Conversely, the 2023 Florida Statutes defines “emotional support animal” as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.”

As with a service animal, “it is unlawful (to the extent required by federal law, rule, or regulation) to discriminate in the provision of housing to a person with a disability or disability-related need for, and who has or at any time obtains, an emotional support animal. A person with a disability or a disability-related need must, upon the person’s request and approval by a housing provider, be allowed to keep such animal in his or her dwelling as a reasonable accommodation in housing.”

A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.

Accordingly, the right to reasonable accommodation exists, notwithstanding any deed restriction or prohibition relating to pets in a community association. While, under normal circumstances, the Association’s governing documents could prohibit the allowance of an animal, or restrict size, weight, and certain breeds, in the community, under the Federal and Florida Fair Housing Acts, if an individual with a disability requests a reasonable accommodation for a documented disability, including, but not limited to the keeping an animal, contrary to the Association’s governing documents, the Association must consider the request.

A service animal or emotional support animal is not a pet. Instead, they are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities. Therefore, if needed to provide an equal opportunity to use a dwelling, a service or support animal, is considered a reasonable accommodation, exempt from existing rules or prohibitions against pets.

Emotional Support Animal Must Comply Under Community Association’s Rules

While an emotional support animal provides accommodation for a documented disability, the animal may not otherwise violate the association’s restrictions and must comply with all other rules. While the animal may be exempted from certain pet restrictions and be permitted to reside with the owner/resident, the animal could violate the restrictions by being a nuisance, causing damage to common areas of the community, or infringing on other residents’ rights for peaceful possession. The owner and its emotional support animal must comply with the rules, including rules regarding leashes and messes that must be cleaned up. If the animal or its owner disobeys the rules, the association could have a basis to initiate action to enforce compliance.

The first consideration by an association is whether the individual qualifies as disabled under the Federal and Florida Fair Housing Acts and whether the accommodation requested is necessary to have an equal opportunity to use and enjoy his/her dwelling. For ease of use and for association record keeping purposes, we often create standard forms for a resident to submit a request for an emotional support/service animal request. Please note, an association cannot require that a specific form be used; however, the association may request that a form be completed for the association’s records, when dealing with a non-visible disability. With that being said, if a resident does not wish to use the provided form, they may submit support for the request through other means; however, the Association may not charge a fee for an emotional support animal or a to process such request for an accommodation.  

If the disability-related need for a support animal is not readily apparent, the Association may request certain information to support the emotional support animal/prescription animal request. The Association cannot require information about the specific disability but can require documentation from the medical provider advising that the emotional support animal/prescription animal is a reasonable accommodation for a documented disability.

What Information Can Community Associations Require?

  • In the absence of a readily apparent disability, an applicant may be required to give official proof that such disability exists (again, said proof is not required to specify what the disability is) and that it is a qualifying disability for an emotional support animal.
  • The Association may ask for information that identifies the therapeutic emotional support that is provided by the specific emotional support animal, a disability determination from the government, and proof of eligibility for an accommodation due to a disability.
  • This documentation should be written by a medical professional who is acting in the capacity of treating the disabled person and needs to explain the specific support that the emotional support animal provides to the disabled person. If more than one emotional support animal is requested, the association is permitted to ask for information regarding the need for each one.
  • Reasonably supporting information would consist of information from the medical professional that is general to the condition, but specific as to the individual with a disability and the assistance or therapeutic animal support provided by the animal.
  • A relationship or connection between the disability and the need for the assistance animal should also be provided, especially where the disability is non-observable.

Regarding a unique or an exotic animal (other than animals commonly kept in households), the requestor has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. The lack of such documentation may be reasonable grounds for denying a requested accommodation and the requestor would need to show that the unique animal is individually trained to do work or perform tasks that cannot be performed by a dog or other household animal. Further, a health care professional would need to confirm that without the specific animal, the symptoms or effects of the person’s disability would be significantly increased. However, any accommodation would be balanced to ensure that the accommodation would not constitute a direct threat to the health or safety of other individuals or where the accommodation would result in substantial physical damage to the property of others.

Falsifying Information is a Misdemeanor

Additionally, changes to the law in Florida were enacted to prevent abuse of such laws that affect requests for a reasonable accommodation in Florida and were aimed to protect community associations and landlords from fraud, misrepresentations, and abuse. For example, Section 817.265, Florida Statutes, provides:

“A person who falsifies information or written documentation, or knowingly provides fraudulent information or written documentation, for an emotional support animal under s. 760.27, or otherwise knowingly and willfully misrepresents himself or herself, through his or her conduct or through a verbal or written notice, as having a disability or disability-related need for an emotional support animal or being otherwise qualified to use an emotional support animal, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. In addition, within 6 months after a conviction under this section, a person must perform 30 hours of community service for an organization that serves persons with disabilities or for another entity or organization that the court determines is appropriate.”

Further, Section 456.072, Florida Statute was amended to provide that a health professional who provides misleading, deceptive or fraudulent representations, which would arguably include written documentation indicating that a person has a disability or which documentation supports a person’s need for an emotional support animal, without personal knowledge of the person’s disability or disability-related need for the specific emotional support animal, could be subject to disciplinary action.

Best Practices for Housing Providers on Reasonable Accommodations

As provided in FHEO-2020-01, dated January 28, 2020, the U.S. Department of Housing and Urban Development  (“HUD”) created a best practices guide for housing providers, which provides “greater clarity”, on what considerations housing providers may contemplate in addressing reasonable accommodations. The guide provides an outline that may be requested and provided for a housing provider by health care professionals to support the claim that the accommodation is necessary to treat and provide related services for the applicable patient to reduce the burdens that are faced by housing providers when they are uncertain about the type and amount of documentation they may request.

Accordingly, limited support and documentation to support the request of a service animal or an emotional support animal is often not legally sufficient, and protections to prevent unjustified or unreasonable requests exist.

As a result, requests by community association residents for emotional support animal accommodations could be a complex issue. To avoid concerns, fraud, abuse, and ensure proper processes are followed, it is important to consult a legal professional knowledgeable about the latest rules and regulations surrounding both the documentation needed and the accommodations required under the federal and state laws.

About Our Author
Tiffany Love has more than 15 years of experience in real estate and community association law, representing and advising residential and professional community associations across Florida. With a primary concentration on civil litigation, she counsels her clients on matters involving real property, condominium associations, homeowner associations, real estate disputes, foreclosures, insurance disputes, bankruptcy, and collections. She also assists association officers, directors, and property managers with corporate operations, including litigation, mediation, and transactions.