Multifamily housing providers are faced with increasing requests from residents with disabilities for emotional support animals (ESA). Requests for ESAs are generating more enforcement actions.
In 2020, the U.S. Department of Housing and Urban Development (HUD) reported that 60 percent of all complaints concerned denials of requests for accommodations due to a disability under the Fair Housing Act. In New Jersey, the Division on Civil Rights is handling a large number of complaints and has not only publicly announced enforcement activities and fines against landlords, in one matter it made a $20,000 settlement with a co-op board for denying a tenant’s daughter an emotional support dog after her father’s death.
There has also been an uptick in allegations of fraud, including sensational accounts of an alligator and peacock ESA. The heightened scrutiny of ESAs has prompted more than a dozen states recently to enact laws to combat fraudulent claims of pets as ESAs and to set standards for the process of qualifying ESAs and the professionals who document the necessity including California, Colorado, Florida, Indiana, Kentucky, Minnesota, Pennsylvania and Tennessee.
It is critical for housing providers to know how to assess a request for an ESA. ESAs are subject to different legal treatment than service animals such as seeing eye dogs. ESAs provide assistance and emotional support but are not specially trained.
ESAs are not limited to dogs. Any domesticated animal can qualify including cats, rabbits, birds, and turtles, among others. ESAs and service dogs are not considered pets. A housing provider’s no pet policy cannot be applied to a resident with a disability. A pet deposit or extra charge cannot be imposed for an ESA but the owner must pay for any damage that is caused.
A matter of proof
A 2024 decision by the New Jersey Supreme Court in Players Place II Condominium Association, Inc. v. K.P. applied federal and state law and provides important guidance for an HOA to avoid a housing discrimination claim. The case involved a refusal by an HOA with a strict prohibition on dogs more than 30 pounds to permit a resident, with a documented psychological disability, to keep a 63-pound dog as an ESA. The dispute dragged on for more than four years before the 2024 decision.
The legal standard for discriminatory housing is a refusal to make reasonable accommodations that may be necessary to afford a disabled resident an equal opportunity to use and enjoy a dwelling, including public and common spaces. The initial burden is on the resident to establish a disability and that the accommodation is necessary. Then the burden shifts to the housing provider to show that the request creates an unreasonable burden.
A disability need not be a physical limitation. Most disabilities, like the one in Players, are not readily apparent. Federal law expressly recognizes certain impairments that meet the disability standard in virtually all cases, including autism, HIV infection, PTSD, OCD, and major depressive and bipolar disorders. New Jersey law defines a disability to include any mental, psychological or developmental disability which is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.
These types of disabilities and the need for an ESA can be established through a letter of determination from a health care provider or a governmental agency, like social security. The HOA’s argument in Players that a medical exam and a prescription for the ESA would be necessary was rejected. All that is needed is for the accommodation to alleviate, shorten or lessen at least one symptom of the disability.
The Players Court also rejected the HOA’s claim that a 30-pound dog, which complied with its pet policy, would also alleviate symptoms, instead of the 63-pound dog.
The assessment must be based on a specific request for a specific animal that may lessen a symptom. Whether a different breed or size could also alleviate symptoms is not grounds to deny a request. An outright ban on a specific breed such as the often-maligned pit bull breed or a weight limit is impermissible.
A resident’s request should not be summarily rejected. Even where the request would impose an undue financial and administrative burden or a fundamental alteration in operations, the housing provider should still engage in an interactive process to discuss alternatives to accommodate a resident’s disability needs. The assessment of the resident’s request may be made before or after the ESA is acquired.
A dialogue in advance and throughout the process is optimal. Even if the request for an ESA is not made until after the animal is in the home, there are benefits. It will make clear whether the animal’s behavior is aggressive to others or causes excessive damage and show just how the resident’s symptoms are impacted.
The sky is not the limit
The Players Court acknowledged that a housing provider isn’t obligated to do everything humanly possible or make an accommodation that will cure or eliminate the disability. If the housing provider can prove that the animal poses a direct threat to the health or safety of other individuals or has or would result in substantial physical damage to the property of others, that would be a factor supporting a denial. Allergies and fear of dogs by others are not valid reasons on their own for denying the ESA. Other accommodations may be reasonable and workable such as deep cleaning of common areas or using different designated elevators in a multi-level property to separate people from getting close to the ESA.
The 2024 Players decision which sent the case back to the trial court after years of litigation shows how ESA requests can generate costly, lengthy disputes. To navigate these waters, a housing provider can be guided by its insurance carrier, examples in university housing policies, disability accommodations used in the employment setting, governmental best practices guides published in 2020 such as can be found at yieldpro.com/hudesa and the framework set by the Players decision.
