Emotional support animals have become more and more common, so it is important for homeowner associations (“HOAs”), condo associations, management companies, and landlords to learn how to address support animals living in associations and rental properties where there is a “no pets” policy.
What is a Support Animal?
Emotional support animals (“Support Animals”) are used to treat depression, anxiety, and a myriad of other conditions and serve more as companions for owners.
A service animal (“Service Animal”) under Title II and Title III of the Americans with Disabilities Act, on the other hand, is specially trained to perform a function or job for the owner that has a physical, intellectual, or emotional disability. A Service Animal assists people with disabilities including, but not limited to, blindness, low vision, difficulty hearing, and seizures.
Service Animals are an exception to a “no pets” policy, but what about Support Animals?
In Illinois, the question of Support Animals within associations or rental properties is governed by the Fair Housing Act (“FHA”). The FHA protects people from discrimination when renting, buying, or financing a property and when pursuing other housing-related activities. Under the FHA, people with disabilities can request reasonable accommodations from their association, management company, or landlord, which includes the right to own or use a Support Animal.
The request for an accommodation must be:
- In writing,
- Be made by a person with a therapeutic relationship with the person requesting the accommodation, and
- Describe the disability related need for the Support Animal.
The FHA supersedes any rule or regulation that associations, management companies, or landlords might have regarding pets. Therefore, you cannot use your “no pet policy” to deny a potential homeowner who has a Support Animal.
That said, and although you cannot restrict Support Animals in associations and rental properties, you can ask for proof or documentation. To that end, there are a variety of documents that an association, management company or landlord can require to be provided as proof or documentation, such as proof of disability benefits, verification from a medical professional or a licensed therapist, and/or Support Animal certification. However, an association, management company, or landlord cannot ask specific questions about a person’s disability during the application or verification process.
What permissible restrictions can be established to safeguard the property?
Although owners and renters have certain rights regarding Service Animals, as noted above, an association, management company, or landlord still has the right to require that the owners or renters follow the rules and regulations of the association, management company, or landlord. Therefore, it is important to establish rules of behavior such as waste clean-up, noise restrictions, and leash regulations.
Can a request for a Support Animal be denied?
There are some instances where an association, management company, or landlord can deny a Support Animal, for example:
- If the request to live in the community was not made on behalf of a person with a disability.
- The association, management company, or landlord has irrefutable evidence that a homeowner or renter does not have a disability-related need that necessitates a Support Animal.
- An association, management company, or landlord can deny Support Animals that pose a threat to the health and safety of the other community members. This is a valid exemption if no other accommodation can reduce the problem. An example would be if you are dealing with an unruly service dog that constantly jumps on people and a leash is unable to control it.
- An association, management company, or landlord can also deny Support Animals that cause substantial damage to property, especially if no other accommodation can reduce the problem. For example, you might be dealing with a dog that destroys flowers and plants even after installing fences.
This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
Mona Naser | Commercial & Residential Real Estate, Business Transactions, Litigation, and Workouts
Mona works with corporate and individual clients to advise, counsel, and assist them in areas of commercial litigation, commercial real estate, general corporate work, and residential real estate. If you need assistance with a related matter, contact Mona.
Morgan I. Marcus | Commercial Litigation, Bankruptcy, Creditors’ Rights, Appellate Practice
Morgan brings 10 years of experience in representing financial institutions, loan servicers, and creditors on the trial and appellate levels in federal, state, and bankruptcy courts and in arbitration. His focus is on commercial litigation, creditors’ rights, and bankruptcy litigation. If you need assistance with a related matter, contact Morgan.