When it comes to emotional support animals, things can become confusing very quickly for condominium, homeowner (HOA), and townhome associations.

 

There are differences between an emotional support animal, a service animal, and a therapy animal. An emotional support animal provides comfort for people with a disability or medical condition. These animals are most oftentimes dogs and are used to treat depression, anxiety, and myriad of other conditions. A therapy animal provides psychological benefits to people in clinical environments including hospitals and rehabilitation facilities. Finally, a service animal assists people with disabilities including blindness, low vision, difficulty of hearing, and seizures.

 

As emotional support animals become more common, news outlets have commented on the use of emotional support parrots on an airplane or simply issues that may arise with an emotional support dog being in a a condominium unit which would otherwise restrict all animals Accordingly, community association board members, property managers and landlords must address a critical question: When do associations and landlords need to allow for the use of emotional support animals within their building and what verification process can be used to do so?

 

Federal and State Laws

Support animals within associations or rental properties are governed by the Fair Housing Act. In Illinois, emotional support animals are seen as an exception to any pet restrictions imposed within an association’s declaration. In Indiana, emotional support animals are not considered pets. Thus, if your association has a “no pet” provision in the governing documents, that provision does not apply.

 

Under both the Illinois and the Indiana Fair Housing Act, it is unlawful for an association to discriminate against an owner with a disability. As such, it is important that Associations and Landlords take caution when approached with an emotional support animal request or the use of an emotional support animal within their building.

 

“Meaningful Review”

When a community association receives a request for a support animal, the association is entitled to conduct a “meaningful review.” This review permits the association to request the information necessary to become apprised of the owner’s disability and the desired need for the support animal. Subsequently, the association would be entitled to receive documentation from the owner’s doctor that determines the disability and how the support animal will assist.

 

In Illinois, this “meaning review” process is outlined in ILCS 310 ILCS 120/ or the Assistance Animal Integrity Act. They outline that, in the event a disability is not readily apparent, an Association can request “documentation that a person has a disability and requires the use of an assistance animal as a reasonable accommodation in housing under the federal Fair Housing Act or the Illinois Human Rights Act”. The request must: 1) be in writing: 2) be made by a person with whom the individual requesting an accommodation has a therapeutic relationship; and 3) describe the individual’s disability-related need for the assistance animal.”

 

Illinois Law

Illinois’ stance regarding emotional support animals or service animal requests of tenants still requires that reliable documentation of the disability-related need for the assistance animal be required, however, the landlord may not ask for medical records or extensive documentation of the tenant’s physical or mental impairments.

 

Indiana Law

In a recent case from the Indiana Court of Appeals (Furbee Properties, LLC v. Wilson et al.), a tenant brought a cat into her apartment and informed her landlord that the cat was an emotional support animal. The tenant provided documentation by her doctor stating that the tenant had a disability and that an emotional support animal would assist the disability.

 

The landlord requested more information. More specifically, the landlord wanted to know the nature of the impairment, the scope of any physical examination conducted of the tenant, if the tenant was interviewed, the number of sessions the tenant had with their doctor, a statement from the doctor indicating an examination was conducted that was appropriate for the tenant’s diagnosis, and a copy of the doctor’s license. The tenant refused to provide any of the information.

 

The Indiana Court of Appeals held that since the tenant refused to provide any additional information, the landlord was acting accordingly in not allowing the emotional support cat. The court also noted that the landlord was entitled to know the tenant’s disability-related need for the cat.

 

This case informs us that, at a minimum, Indiana community associations are entitled to request information regarding the disability and how the emotional support animal will help the owner. If your association is ever provided with a request for an emotional support animal, you should contact your association’s attorney to ensure the request is handled legally and properly.

 

Denying a Request

In both Illinois and Indiana, associations can raise defenses when it comes to denying a request for an emotional support animal. If the animal will create an unsafe environment or danger to the other residents, the request can be denied. Further, if the emotional support animal is approved but the owner does not take care of the animal or the animal becomes a nuisance, the association can request that the animal be removed.

 

However, it is advisable to seek guidance from the association’s legal counsel prior to denying requests to ensure they are in legal compliance. For example, Indiana associations need to ensure they follow the Grievance Process pursuant to IC 32-25.5-5 (for single-family homes and townhomes) and IC 32-25-8.5 (for condominiums).

 

If your community has legal concerns regarding emotional support animals, service animals, and therapy animals, do not hesitate to contact our law firm by calling 855-537-0500 or visiting www.ksnlaw.com.

 

Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We have four office locations, serving hundreds of clients and thousands of communities throughout Illinois, Indiana, and Wisconsin. Our attorneys are also licensed in Arizona, Florida, and Missouri.

 

This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article you understand that there is no attorney client relationship between you and the article author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. © 2018 Kovitz Shifrin Nesbit, A Professional Corporation.