Creature Comforts: Emotional Support Animals
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For a period in time, condominium co-owners were getting around pet prohibitions by claiming their pet enjoyed a protected status as an emotional support animal. All one had to do to get an association to allow the animal was to get a doctor’s note diagnosing him/her with some form of emotional disorder (anxiety, depression, etc.), along with a statement that a pet would help with the treatment of such disorder. If you search online for the term “emotional support animal,” you will find a plethora of websites claiming to “officially” register your pet as an emotional support animal (ESA) for a small fee. These websites offer printable certificates with a picture of your animal for you to waive in the red-hot faces of your condominium association’s Board of Directors.

Federal Law

The American with Disabilities Act (the “ADA”),[1] 42 U.S.C. § 12132 prohibits a public entity from discriminating against a qualified individual with a disability. The ADA defines “public entity” to mean any state or local government, any department, agency, special purpose district, or other instrumentality of a State or States or local government, and the National Railroad Passenger Corporation, and any commuter authority.[2]   Apartments and condominiums (and, presumably, homeowners associations) are not considered “public accommodations” under the ADA.[3]  Therefore, a condominium association is not a “public entity.”

However, condominium and homeowners associations are subject to certain provisions of the Fair Housing Act (“FHA”).[4]  The U.S. Department of Housing and Urban Development website states that FHA violation complaints may be made against “property owners, property managers, developers, real estate agents, mortgage lenders, homeowners associations, insurance providers, and others who affect housing opportunities,”[5] which includes condominium associations.  The FHA prohibits an association from refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.[6]  Reasonable modifications include exceptions from pet restrictions to allow for a service animal, because service animals assist with physical activities, such as walking or seeing. Service animals are not considered “pets.”

In order for an emotional support animal to be protected under the FHA, a person has the burden to overcome a three-pronged test: (1) to prove they have an emotional illness; (2) to prove that the emotional illness substantially limits one or more major life activities; and (3) that the animal provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. As long as the person provides proper documentation in regards to his or her emotional illness and that the emotional support animal is necessary, it is generally not economical for an association to engage in litigation to challenge it.

Michigan Law

Service animals are protected under Michigan’s Collars, Harness, and Leashes on Dogs in Public Places Act.[7]  Prior to 2016, service animals were limited in use to persons who are deaf, audibly impaired, or otherwise physically limited. There was no mention of emotional impairments, so co-owners continued to rely on protection for emotional support animals under the FHA.

On October 19, 2015, the Governor of Michigan approved H.B. 4527.[8]  The law amended the Collars, Harness, and Leashes on Dogs in Public Places Act.[9]  The definition of a “person with a disability” was modified to “a physical or mental impairment that substantially limits 1 or more life activities,”[10] which includes a veteran diagnosed with post-traumatic stress disorder.[11]  The law also defined service animal to mean “a dog or a miniature horse that has been individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[12]  Emotional support animals were specifically excluded from the definition (except for veterans suffering from post-traumatic stress disorder), and thus continued to not be recognized in Michigan law.

Conclusion

While Michigan does not recognize emotional support animals, as of the date this article was written, the FHA does and condominium associations in Michigan must comply with it.[13]

If your community has legal concerns regarding emotional support and/or service animals, do not hesitate to contact our law firm. Our experienced team is dedicated to helping condominium associations run smoothly, whether this includes determining voting or board member eligibility, noticing an annual meeting, attending board meetings, reviewing management contracts, or simply advising our clients of their rights and duties, we are here to help you with all aspects of association living. Please give us a call at (248) 349-6203.

UPDATE: HUD issued Guidance on Assistance Animals  – Released on January 28, 2020. To read the complete notice click here: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

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[1] 42 U.S.C. §§ 12101, et. seq., 104 Stat. 327 et seq.(1990).

[2] 42 U.S.C. § 12131(1), 104 Stat. 337 (1990).

[3] Independent Housing Services of San Francisco v. Fillmore Center Assoc., 840 F.Supp. 1328 (N.D. Cal. 1993).

[4] 42 U.S.C. §§ 3601, et. seq., 82 Stat. 81 et seq. (1969).

[5] https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint.

[6] 42 U.S.C. § 3604(f)(3)(B).

[7] Act 82 of 1981, codified at MCL §§ 752.61, et. seq.

[8] Public Act 147 of 2015 (October 19, 2015, Eff. January 18, 2016) (codified at MCL §§ 752.61, 752.62, and 752.63).

[9] MCL §§ 752.61, 752.62, and 751.63

[10] MCL § 752.61(A)(i).

[11] MCL § 752.61(B)(i).

[12] MCL § 752.61(C).

[13] Although the Michigan Legislature has introduced and approved a bill (2017 Michigan Senate Bill 0663) concerning emotional support animals, it does not specifically apply to condominium associations. The bill appears to have stalled in a committee, and not further action has been taken on it since December 2018.