Emotional support animal. A phrase that causes headaches for many community managers and board members. As more people have attempted to push the boundaries of what constitutes an emotional support animal, the way POAs govern emotional support animals has evolved with further understanding of the issue and further clarification through the courts, the Department of Housing and Urban Development (HUD) and the Fair Housing Act (FHA). But is there more POAs can do when emotional support animal issues arise?

Service Animal vs. Emotional Support Animal

The concept of emotional support animals has been largely defined by its more outlandish uses. As a result, that has created controversy when requests for emotional support animals are brought forward. For many, the general thinking is that an emotional support animal is not a service dog, so it cannot be helpful to its owner.

HUD says otherwise. HUD defines both emotional support animals and service animals as assistance animals.

The HUD definition of an assistance animal is as follows, “an assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. An assistance animal is not a pet.”

HUD does have different requirements for how it terms assistance animals.

• Service Animals: Service animals are individually trained to provide support to the disabled individual. Service animals can ONLY be dogs.
• Support Animals: These are animals that typically provide emotional and/or therapeutic support to a disabled individual, i.e., emotional support animals.

Governing Emotional Support Animals to Comply with FHA

In 2020, HUD issued an “Assistance Animal Notice” to provide guidance to housing providers, POAs are considered housing providers, who are presented with a request for an assistance animal as a reasonable accommodation under the FHA.

The Assistance Animal Notice did not provide answers to every question surrounding emotional support animals, but it did offer clarification to many topics.

Some key points of the notice POAs need to remember include:

• The individual is not required to ask the housing provider for the reasonable accommodation before bringing the assistance animal into the home. The individual can ask for the accommodation after the fact, although making a request for a reasonable accommodation in response to a violation notice may create an inference against good faith on the part of the person making the request.
• Verification of disability from an Internet website that sells certificates, registration or licensing documents for assistance animals to anyone who answers questions or participates in a short interview and pays a fee, is NOT GOOD ENOUGH. What’s good enough? A note from a healthcare professional that sees the individual remotely but still has personal knowledge of the individual.
• The types of Household Animals that qualify as emotional support animals. These include a dog, cat, small bird, chicken, rabbit, hamster, gerbil, other rodent, fish, turtle or other small, domesticated animal traditionally kept in a house for non-commercial purposes. Reptiles other than turtles, barnyard animals, monkeys, kangaroos and other non-domesticated animals are not considered household animals.

What Has Experience Taught POAs About Regulating Emotional Support Animals?

Experience has taught those of us that work in the POA industry to truly expect the unexpected. The industry will continue to see requests for emotional support chickens, peacocks, donkeys, etc. until there is further guidance from HUD or changes to the FHA.

For a “unique animal” (i.e., a type of animal that is not commonly kept in households), the requesting party has the “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or specific type of animal”. If the requesting party is able to meet that burden, the POA will likely need to allow the animal.

The way POAs govern emotional support animals can only evolve as long as the FHA, or case law interpreting the FHA, evolves to meet the needs of the time. POAs must adhere to the guidelines set forth by HUD and the FHA and when reasonable accommodation requests are made should consult with the POA’s legal counsel to determine whether the Association is entitled to supporting documentation, and to ensure the proper steps are followed to promptly approve or deny the request. Violations of the FHA can result in civil penalties and, in certain circumstances, individual liability for a POA’s directors and officers.