Who Rescues Who? The Southern District Recognizes Emotional Support Dogs are Service Animals, Too!

Pets make happy homes.  After a hard day, it sure is great to come home to a wagging tail.  No one would deny the benefit of a trained service dog who assists the visually impaired.  Sadly, the same cannot be said in regard to emotional support dogs.  Even the courts have been split on this issue.  Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation.  However, more recent court decisions recognize that the Fair Housing Act (the “FHA”) has no such “training” requirement, and thus have concluded that an emotional support animal may be considered for a “reasonable accommodation” under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights.

Let’s face it, when the decision is made to live in a condominium, certain liberties must give way in favor of communal living.  Often, it is the unit owner who is required to compromise their behavior to conform to the condominium’s rules.  But, at times, the condominium association, acting through its board, is the one that needs to compromise their rules in favor of one or two unit owners.  What if a situation arises where a purchaser requests an exception to the rules and regulations before they take ownership and becomes an association member?  What rights does a prospective owner have?  More specifically, if dogs are not allowed, can a disabled prospective owner be denied unit ownership based on their properly completed application where the purchaser requests a “reasonable accommodation” to bring their emotional support dog into the condominium where dogs are prohibited?

On May 28, 2012, in denying a defendant condominium association’s motion for summary judgment where the association argued that emotional support dogs who have no special training are not “service animals”, the federal court for the Southern District of Florida, in Falin v. Condominium Association of LA Mer Estates, Inc., explained that the Federal FHA (as amended by the Fair Housing Amendments Act of 1988) make it unlawful “to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of … that buyer or renter [or] any person associated with that buyer or renter…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.” Read together, the court explained, “these provisions make clear that refusing to make reasonable accommodations violates the FHA’s general prohibition against denying housing based on a disability.” To establish a reasonable accommodation claim, a plaintiff must show that “(1) he [or a person associated with him] is disabled or handicapped within the meaning of the FHA, (2) a reasonable accommodation was requested, (3) such accommodation was necessary to afford him [or the associated person] an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the requested accommodation.”

The defendant condominium association’s main argument in support of their motion for summary judgment focused on the third element; specifically, whether 95 year old Ms. Falin’s request for an accommodation to allow her 21 year old emotional support dog was necessary to afford her an opportunity to use and enjoy her condominium unit.  The association went so far as to point out that Ms. Falin’s dog was not a “service animal” that was trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures.  In fact, the record shows conclusively that the dog had no such training, but instead served only as an “emotional-support animal” for Ms. Falin.  However, her doctor opined that the dog helped remedy Ms. Falin’s anxiety, difficulty in sleeping, and related symptoms.  In the end, the court sided with the prospective owner clearing the way for the case to head towards trial when they held that a disabled person’s emotional support dog, without any specific training, can still be a “service animal”.

In making a request for a reasonable accommodation for a service animal, be it for an emotional support pet or otherwise, remember that a licensed physician must clearly explain your recognized disability and how the requested accommodation will assist you in the opportunity to use and enjoy your dwelling.

Another lesson can be gleaned from this decision, too.  Don’t get caught in the trap of believing that only unit owners have standing to sue their association based on the rules and regulations.  While that may be true more often than not because owners need “legal standing” to bring their claim, which they get by virtue of association membership, in the right circumstances, other laws can create such “standing” in favor of non-owners, too.

Posted in Fair Housing, Pets.