"No, you cannot move in with your emotional support dog; the condominium association does not accept pets."
Realtors need to stop when they hear these words: An emotional support animal, therapy dog, or service animalis not a pet.Rather, the animal is a tool that the owner needs to function on a daily basis. Housing providers (landlords, condominium associations, homeowner's associations, etc.) need to understand the difference.
The Florida Realtors Legal Hotline fields calls regularly about whether a housing provider can deny a tenancy or purchase due to the association's pet restrictions. The short answer is no, but of course it is not always that simple. This article is the first of a series in which we will examine the details surrounding assistance animals. Let's start by explaining the law as detailed in the Fair Housing Act.
According to the act it is unlawful for any housing provider to "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling (housing unit) to any buyer or renter because of a handicap (or a disability.)" The definition of "disability" includes mental or physical disabilities that substantially limit one or more major life functions. The definition of discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."
Recently the Federal Department of Housing and Urban Development (HUD) won an enforcement action against a condominium association that refused to allow an emotional support animal because the association had a "no pet" policy. The association appealed HUD's finding and the court upheld the decision, finding "The Fair Housing Act requires that housing providers, including condominium and homeowners associations, grant reasonable accommodations to rules, policies, or practices when such accommodations are necessary to afford a person with disabilities an equal opportunity to use and enjoy housing. This includes waiving 'no pet' rules to allow emotional support animals."
This is one of a dozen enforcement actions where the courts require housing providers to waive their rules to assist the disabled.
As a property manager, what does this mean for the housing providers you may represent? Well, if a client has a policy that only allows dogs under 45 pounds and a disabled person has an assistance dog that weighs 60 pounds, your client most likely will be required to accept the disabled person and assistance animal.
Or, say you're managing a home for a couple that wants to prohibit pets because they plan to retire into the home eventually and they have a severe allergy to cats. If they do not live in the premises currently and a tenant needs a cat for emotional support, more than likely, your clients cannot prohibit the renter and pet. In the event anyone has a question, the housing provider should consult personal legal counsel.
If you are on the other side of the transaction and are working on behalf of an individual with a disability, you need to disclose the need for the animal and request a reasonable accommodation. And the individual you represent must document the need for the accommodation if it is not readily obvious.
Remember, it is not your responsibility to decide whether an animal should be permitted. That is the housing provider's role. But as a Realtor, you can advise the provider that the Fair Housing Act has substantial protections for the disabled. A good rule of thumb is to remind the housing provider that assistance animals are not considered pets if they provide assistance, perform tasks or provide emotional support for the benefit of a disabled person.
In the next article, we will discuss what a housing provider can request and require in terms of documentation and training of assistance animals under the Fair Housing Act.
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