By Clayton Hearn and Ashley Koirtyohann

Login to any social media website and you will likely see images and memes from airports, restaurants, stores and a variety of other locations of people being accompanied by a menagerie of different animals. Alligators, peacocks, monkeys and more are often claimed as an emotional support animal (ESA). As a result, the issue of ESAs has become a hot-button topic for many businesses and organizations across the country and property owners’ associations (POA) are not immune. As a firm, we have seen a significant uptick in inquiries regarding non-traditional animals being kept as ESAs (most notably, several requests involving emotional support chickens and at least one request for an emotional support animal for someone’s emotional support animal). In many cases, the government requires reasonable accommodations be made under the law. But, as more incidents of people trying to circumvent the law occur, can anything be done to regulate ESAs in communities and ensure the law is being used properly before your community becomes a veritable Jumanji?

Emotional Support Animals

Before delving into the federal regulations impacting ESAs, it is important to understand how the law defines them. First, ESAs are not considered to be pets. ESAs provide emotional and/or therapeutic support to a disabled individual. In the past decade, the U.S. has seen a sharp increase in the use of ESAs. The National Service Animal Registry (a voluntary service animal registration service) reported an increase in ESA’s registered through its website from 2,400 in 2011, to more than 200,000 in 2019. While many individuals benefit greatly from the use of an ESA, many others unfortunately attempt to game the system by claiming a variety of mammals, reptiles and birds as ESAs in an effort to avoid the rules that would apply if the animal in question was a pet. In response to these cases, some states have adopted laws making it a crime to lie about a pet being an ESA. Texas does not have a similar law regarding ESAs as of the date of this article, but has made it a misdemeanor to outfit a dog as if it were a specially trained service animal when no such training has been provided.

Recently, we have seen many businesses, specifically major U.S. airlines, begin to ban ESAs. But before your POA rushes to create new rules banning ESAs it is important to remember the rules governing ESAs for the airlines differ from those governing ESAs in POAs.

Fair Housing Act

The rules for ESAs in POAs can be found in the federal Fair Housing Act (FHA). This act is enforced by the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ). In accordance with the FHA, “individuals with a disability may request to keep an assistance animal as a reasonable accommodation to a housing provider’s pet restrictions.” Guidance issued by DOJ and HUD has stated that ESAs are included in the definition of “assistance animal.” So, what does this mean for POAs?

In the eyes of HUD, POAs are viewed as housing providers and are responsible for responding to requests for reasonable accommodation, including requests to keep an ESA on the property. A reasonable accommodation is “a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.”

These requests typically take the form of a request for reasonable accommodation regarding a community’s pet-related restrictions. As mentioned above, ESAs are not classified as “pets.” This means owners of ESAs are generally entitled to exceptions from breed restrictions, weight limits, limitations on the number of pets allowed, and pet fee requirements, among other rules.  

When responding to requests, POAs should follow the guidelines issued by HUD. In 2020, HUD issued an updated “Assistance Animal Notice” to provide guidance to housing providers who are presented with a reasonable accommodation request on the types of documents and information needed for the reasonable accommodation request. For a full breakdown of the notice, please read our “New HUD Publication on Assistance Animals” blog post from last year. It is important to note, ESAs are NOT service animals. Service animals are individually trained to support the disabled individual and can ONLY be dogs or, in some cases, miniature horses. In short, the notice clarifies the types of animals that qualify as ESAs. ESAs are generally required to be common household animals. Examples of household animals are dogs, cats, small birds, rabbits, hamsters, turtles, or other small, domesticated animal traditionally kept in a house for non-commercial purposes. What is not a household animal? According to HUD, reptiles other than turtles, barnyard animals, monkeys and other non-domesticated animals fall within this group. As with most rules, there are exceptions.

Unique Animals

An individual with disabilities may be entitled to keep a unique animal as an assistance animal, but the individual requesting the accommodation has the substantial burden of demonstrating a disability-related need for the specific type of animal in question. While HUD has not provided an example of this burden being met in the case of an ESA, the agency states it could be met in the case of an individual who utilizes a small monkey as an assistance animal because the monkey is able to open medication bottles.

What Action Can POAs Take?

If a proper request is made, and the request is supported by the documentation POAs are permitted to seek under the FHA, the POAs hands are fairly tied. Unlike airlines (which are subject to different statutes), POAs cannot ban ESAs. Additionally, POAs cannot refuse an ESA based on its breed. Rather, ESAs that are common household animals should be allowed unless:

• The specific animal in question would constitute a direct threat to the health and safety of other individuals. This determination cannot be made based on breed. For example, the Association cannot deny a request because the requested ESA is a pit bull, unless the specific pit bull in question has a known history of violent behavior; or
• The specific animal in question would result in substantial physical damage to the property of others that cannot be eliminated or reduced to an acceptable level through actions the individual can take to maintain or control the animal.

When considering a request for reasonable accommodation, POAs should keep the following HUD guidance in mind:

• If the disability and the need for an assistance animal are both readily apparent, the POA should not ask for supporting documentation.
• If the disability is apparent but the need for an assistance animal is not, the POA may ask for documentation of the disability-related need for the assistance animal.
• If the disability is not readily apparent or known, the POA may also ask for documentation of a disability.
• A housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.

The requesting individual is not required to provide medical records or specific details about their disability. Generally, a note from a treating physician or other professional stating that the requesting individual meets the FHA’s definition of disabled and that there is a disability-related need for the ESA is sufficient to meet this requirement.

When considering reasonable accommodation requests, if the community manager or board members have questions on what can and cannot be asked, or the sufficiency of documentation presented, the manager or board member should contact the association’s legal counsel. Violations of the FHA, even if accidental, can be costly to defend and can result in significant penalties.  

The Possible Future of ESAs in Texas

A new bill currently being considered during the ongoing Texas Legislative Session may provide relief for POAs with questions on if the animal for the reasonable accommodation request is truly an ESA.

HB 801, if passed, would both establish a certification program for assistance animals in Texas, including but not limited to obedience training, evaluation by a licensed veterinarian, and evaluation of the primary owner by a mental health professional. The bill would also establish a statewide assistance animal registry. As currently written, it would also prohibit assistance animals in common recreational areas of master planned 55-and-over communities unless the assistance animal is certified and meets the additional requirements under the bill.

HB 801 is still in the early stages. It is yet to be determined if it will pass at all and, if so, what the final text will be. Even if HB 801 becomes law, it is likely to be challenged on the basis that it may be preempted by the federal Fair Housing Act. We will continue to monitor the status of HB 801 as the legislative session continues.

If you would like to learn more on the FHA as it relates to ESAs and service animals, then join RMWBH on February 11, from 11:30 a.m. – 12:30 p.m. Equity Shareholder Clayton Hearn and Associate Ashley Koirtyohann will be presenting a webinar discussing aspects of the FHA and assistance animals, providing a further breakdown of the 2020 HUD Notice and answering your questions.