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Condo | HOA Lawyers

Prohibiting an Emotional Support Animal BEFORE it Bites Someone?

Everyone who deals with emotional support animals is well aware that the Federal Housing Administration (FHA) construes the law very favorably toward the person alleging a need for the animal. Once a person has a medical professional stating that the person meets the FHA disability definition:

  1. a physical or mental impairment – including emotional or mental illness – that substantially limits one or more major life activities,
  2. a record of having such impairment, or
  3. is regarded as having such impairment

the FHA will take the position that they are entitled to an emotional support animal, regardless of how they obtained the diagnosis – i.e. over the internet by paying $100. However, a recent case has at least given associations some grounds upon which to object when the animal appears aggressive.  In Gill Terrace Retirement Apartments, Inc. v. Johnson, (2017) the Court held that although the person was entitled to an Emotional Support Animal, the person was not entitled to the particular animal they sought, even though it had never attacked another person or pet, because:

  1. There were “single incidents of aggressive behavior”;
  2. The dog “exhibited aggressive tendencies;”
  3. The dog “regularly rears up on her back legs, lunges, or bares her teeth at people and other dogs when outside;”
  4. The dog “was trained as a guard dog” and was “people and dog aggressive;” and
  5. Some “residents deliberately stayed indoors to avoid” the dog.

Based on this case, an association looking to deny an emotional support animal should get as much background on the animal as possible before making any decision and be certain to ask others who have come across the animal for their observations. Finally, if your association does intend to deny a request for an emotional support animal, make sure that you have an attorney opinion letter supporting that conclusion so that you can reduce the risk of any successful suit against the Board.

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