What Every Condo or HOA Needs To Know About Emotional Support Animals
Over the last several years, emotional support animals have been a continuous source of speculation and confusion for many Michigan condo and HOA boards. We all have seen the news stories of individuals attempting to bring animals such as squirrels and even alligators into places of public accommodation under the claim that they are emotional support animals. Many will read these stories and chuckle, brushing off these claims as nonsensical; however, when Michigan condo and HOA boards receive a request for an emotional support animal, it is no laughing matter.
In 2020, the U.S. Department of Housing and Urban Development (“HUD”), which enforces the Fair Housing Act (“FHA”), noted that almost 60% of the fair housing complaints they receive involve housing providers, including condos and HOAs, denying requests for reasonable accommodations and disability access and, increasingly, the complaints involve a housing provider denying an individual’s request for an emotional support animal as a reasonable accommodation. These complaints can lead to investigations of the housing provider by HUD or the Michigan Department of Civil Rights (“MDCR”) and, if warranted by the evidence, possible charges of discriminatory conduct being filed either in civil or administrative proceedings.
When a Michigan condo or HOA board receives a request for an emotional support animal from a homeowner or tenant, then, it should act quickly to review and make a decision on the request. But what information should the Michigan condo or HOA board be looking for, and what additional information or questions can they ask when reviewing the request? Below, we provide a 4-step process every Michigan condo or HOA board should undertake when reviewing these requests to help ensure the association is approving legitimate requests for emotional support animals while staying within the bounds of federal and state law.
Step 1: Determine whether the individual is requesting an accommodation for a service or emotional support animal.
Some individuals, including board members, assume that service and emotional support animals are the same thing and refer to them interchangeably; however, service animals and emotional support animals are distinct and there are differences in the reviews that Michigan condo and HOA boards will need to undertake for each. A rule of thumb to help distinguish whether an individual is requesting an accommodation for a service animal or emotional support animal is that only dogs and miniature horses can serve as service animals and they must be individually trained to perform work or tasks directly related to the requesting individual’s disability. If the request involves an animal that is not a dog or a miniature horse, or is a dog or miniature horse that has not been individually trained to perform work or tasks directly related to the individual’s disability, then the request should be reviewed as a request for a reasonable accommodation for an assistance or emotional support animal.
Step 2: Evaluate whether the board has sufficient information that reasonably supports that the individual has a disability.
When requesting a reasonable accommodation for an emotional support animal, an individual must provide reliable information that verifies that they have a disability, details the requested accommodation, and shows the relationship between their disability and the support the requested emotional support animal will provide. Riverbrook v Fabode, 333 Mich App 645, 658-59; 963 NW2d 415 (2020).
This second step, evaluating whether the board has sufficient information that reasonably supports that the individual has a disability, can be the place where Michigan condo or HOA boards accidentally go astray. First, the definition of “disability” under the FHA is broad – It can be any physical or mental impairment that substantially limits at least one major life activity, such as caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Riverbrook, 333 Mich App at 657. A “disability” under the FHA includes blindness, deafness, mobility limitations, mental illnesses, and neurological impairments. Consequently, a Michigan condo or HOA board will want to make sure that it is not discounting a particular impairment as a disability unless it has first considered the FHA’s definition of “disability.”
Second, if the individual’s disability is observable or if the Michigan condo or HOA board already has information that would give them reason to believe that the person has a disability, it cannot ask for further corroborating information regarding the disability. For example, if the individual’s request for an accommodation is related to their blindness or difficulty walking, and the Michigan condo or HOA board is aware that the individual is blind or has difficulty walking, the analysis for this step ends.
When it comes to emotional support animals, though, many times the stated disability is not observable and, therefore, the Michigan condo or HOA board may not have prior knowledge or information regarding the disability. In these situations, the Michigan condo or HOA board is entitled to receive, or request if it is not already provided, sufficient, reliable information to confirm that the individual has a disability. This supporting documentation can come in many forms, including:
- A determination of disability from a federal, state, or local government agency;
- Receipt of disability benefits or services, such as Social Security Disability Income, Medicare or Supplemental Security Income for a person under the age of 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency;
- Eligibility for housing assistance or a housing voucher received because of disability; or
- Information confirming disability from a healthcare professional.
As for the last form of documentation, this does not necessarily need to be a letter from a doctor – The letter can come from an optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse, in addition to a doctor.
Additionally, a note from a healthcare professional who provides services remotely, such as through the Internet, cannot be automatically rejected. While HUD recognizes that there are many websites that sell certificates, registrations, and paperwork for emotional support animals, and that these documents on their own are not sufficient to confirm an individual’s disability, HUD also recognizes that many legitimate healthcare professionals provide services remotely. This means, then, that when a Michigan condo or HOA board receives documentation from the Internet or a website, it should do some research into the website and/or healthcare provider and review the letter that was provided to determine the extent of the provider’s professional relationship with the individual before deciding what credibility to give the letter.
Step 3: Review the type of emotional support animal being requested.
When requesting a reasonable accommodation for an emotional support animal, the individual also needs to provide information regarding the emotional support animal that they are requesting an accommodation for. They do not need to have the emotional support animal before they can make a request, but they do need to provide information, at a minimum, about the type of animal they intend to have. Animals that are commonly kept in households, such as dogs, cats, birds, rabbits, hamsters, fish, and turtles, do not necessarily need to undergo any additional scrutiny, but if an individual is requesting an accommodation for an animal that is not commonly kept in households, such as barnyard and non-domesticated animals, they must provide the Michigan condo or HOA board with additional information to support this request.
Step 4: Confirm whether the individual has provided sufficient information that establishes the disability-related need for the emotional support animal.
Finally, an individual who requests a reasonable accommodation for an emotional support animal also needs to provide sufficient information that establishes their disability-related need for the emotional support animal. This means that the individual should provide information about what specific assistance or support the animal will provide that will alleviate the symptoms or effects of their disability. For example, an individual with a mental illness that prevents them from leaving their home may request an emotional support animal who alleviates their anxiety when in public and engaging in social interactions while an individual with PTSD may request an emotional support animal to help calm them during an anxiety or panic attack.
Requests for emotional support animals can be confusing and, for those worried about potential liabilities under the FHA, concerning; however, understanding the information that an individual is required to provide in their request, along with what questions and information a Michigan condo or HOA board can ask, is a good first step in properly evaluating and responding to these requests. In addition to following the general framework set out above, Michigan condo and HOA boards can also review step-by-step guidance that was published by HUD in 2020 on criteria to consider when deciding whether to grant a request for a service or emotional support animal and how to respond when certain information that is needed for consideration has not been provided. And, of course, Michigan condo and HOA boards that are reviewing these requests and have questions or concerns should reach out to attorneys knowledgeable in community association and fair housing laws for further guidance.
Kayleigh B. Long is a Member at Hirzel Law, PLC and focuses her practice in the areas of community association law and appellate litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Ms. Long has been recognized as a Michigan Rising Star in Real Estate Law by Super Lawyers since 2020, an award given to no more than 2.5% of the attorneys in the State of Michigan. Ms. Long has also made numerous presentations on community association law, along with having articles published in the Michigan Real Property Review. She can be reached at (248) 986-2290 or email@example.com.