Fair Housing & HOAs: Can an Emotional Support Animal Be Denied if Another Unit Owner Has Allergies?

 

In typical circumstances, each owner in a homeowners association must comply with the restrictions defined in the governing documents. Most governing documents contain some restriction concerning pets, whether it be a restriction on the number of pets that may be kept or an outright prohibition on keeping pets. But for those owners who have a disability, the Fair Housing Act, 42 USC 3601 et seq. (“FHA”), is a federal law that allows an owner to request a reasonable accommodation to the governing documents. In the context of emotional support animals (“ESAs”), an approved accommodation would allow the owner to keep the ESA, notwithstanding the governing documents.

According to the American Academy of Allergy, Asthma, and Immunology, about 10% of Americans are allergic to pets, and nearly one in five individuals with asthma are also allergic to pets. With that knowledge, many board members are lead to ask: can an Emotional Support Animal be denied if another unit owner has allergies? How should a homeowners association respond to one owner’s request for an ESA as a reasonable accommodation when a second owner informs the homeowners association that they are allergic to the ESA? Although Michigan (courts?) have no direct authority to provide an HOA with a clear answer on these competing concerns, a case from the federal Sixth Circuit Court of Appeals involving competing concerns in the context of employment provides HOAs with guidance.

 

Fair Housing Act Guidelines and Implications

The Fair Housing Act is a federal law whose purpose is to “provide, within constitutional limitations, for fair housing throughout the United States.”  42 USC 3601.  To accomplish this purpose, the FHA “makes it unlawful ‘[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of’ that person.”  Davis v Echo Valley Condo Ass’n, 945 F3d 483, 489 (CA 6, 2019), quoting 42 USC 3604(f).  An example of unlawful discrimination under the FHA 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.”  42 USC 3604(f)(3)(B).

The issue of ESAs arises when a homeowners association’s governing documents prohibit or limit an owner’s ability to have a pet.  HOAs are subject to the Fair Housing Act Guidelines.  See Hollis v Chestnut Bend Homeowners Ass’n, 760 F3d 531, 541 (CA 6, 2014).  Accordingly, an HOA is required to grant the request of a person with a disability for a reasonable accommodation if the requested accommodation “may be necessary to afford an equal opportunity to use and enjoy the dwelling [and] the accommodation is reasonable.”  Overlook Mut Homes, Inc v Spencer, 415 Fed Appx 617, 621 (CA 6, 2011).

To determine whether a requested accommodation is reasonable, “the burden that the requested modification would impose on the defendant (and perhaps on persons or interests whom the defendant represents) must be weighed against the benefits that would accrue to the plaintiff.”  Hollis, 760 F3d at 542.  A requested accommodation is not reasonable if it imposes undue financial or administrative burdens or a fundamental alteration to the nature of a program. Id.

 

When Can An Emotional Support Animal Be Denied? Balancing an ESA Request with Others’ Allergies

Although in the context of employment discrimination under the Americans with Disabilities Act, not housing discrimination under the Fair Housing Act Guidelines, the Sixth Circuit Court of Appeals in Bennett v Hurley Med Ctr, 86 F4th 314 (CA 6, 2023), considered the issue of whether a hospital discriminated against one of its workers, Bennett, by resfusing to allow her to have her service dog with her at all times.  The hospital told Bennett that it would not approve her to have her dog with her at all times while in the hospital because one patient and one worker reported having an allergic reaction to the dog, and another worker was reassigned to a different floor of the hospital because she was allergic to dogs.  Due to the administrative burdens on the workers and patients’ potential (and actual) allergic reactions, the hospital determined that it was not reasonable for Bennett to have her dog with her while working. The hospital proposed alternatives, such as a body suit for the dog designed to minimize the spread of allergens and keeping the dog in a crate, which Bennett could visit as needed.  However, none of these alternatives was acceptable to Bennett, who sued for failing to grant a reasonable accommodation.

The Sixth Circuit observed that the Department of Justice has adopted regulations and guidance on how a public entity should respond to requests for service animals.  Under these regulations, a public entity must “modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.”  28 CFR 35.136(a).  However, the regulations also specify that a public entity is not required to permit a service animal as a reasonable accommodation in every circumstance.  For example, a service animal is not required if the animal is “out of control” or “not housebroken,” or if the animal would “fundamentally alter the nature of the service, program, or activity” of the public entity or pose “a direct threat to the health and safety of others.”  CFR 35.136(b) and CFR 35.130(b).  As it pertains to a direct threat, the Sixth Circuit highlighted:

 

When determining whether an individual’s use of a service animal constitutes a direct threat, the regulations direct public entities to conduct “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence,” to assess the following three factors: (1) “the nature, duration, and severity of the risk;” (2) “the probability that the potential injury will actually occur;” and (3) “whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” Id. § 35.139(b). To an extent, the direct threat analysis represents a specific application of another general defense in the regulations, which acknowledges that “[a] public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities,” provided that these “safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

 

The Sixth Circuit also cited the DOJ’s guidance specifically regarding allergy concerns:

 

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

 

The Sixth Circuit concluded that Bennett’s request to have her service dog with her at all times was not a reasonable accommodation. The dog posed a direct threat to the health and safety of the patients and workers, as two allergic reactions occurred on Bennet’s first day.  Further, there was a possibility that some patients did not know they were allergic to dogs, and even if all patients knew whether they were allergic to dogs, it would be unreasonable to move those patients to different floors to avoid the dog.  The Sixth Circuit also acknowledged that the hospital offered alternative accommodations to Bennett, which she denied, and that the hospital’s decision to deny the dog was based on the particular circumstances that actually occurred.  Although the court ruled against Bennett due to the nature of her job and work environment, we must examine how this ruling may apply to other situations. The question remains, can an emotional support animal be denied by homeowner’s associations if another owner has allergies?

 

Applying Bennett to HOAs

 

The Bennett case involved different facts and laws than those that typically apply to an owner’s request to an HOA for an ESA.  Specifically, Bennett involved an employee’s request for a reasonable accommodation under the Americans with Disabilities Act, which applies to public entities. In contrast, an owner’s request for a reasonable accommodation is made under the Fair Housing Act guidelines, which applies to housing providers.  See Anderson v City of Blue Ash, 798 F3d 338, 360 (CA 6, 2015) (noting that the Americans with Disabilities Act has narrower regulations for service animals to qualify as a reasonable accommodation than the FHA has for an animal to qualify as a reasonable accommodation).  Further, the DOJ regulations relied on by the Sixth Circuit specifically applied to the Americans with Disabilities Act. However, the framework and reasoning used by the Sixth Circuit in Bennett can still be applied to an owner’s request for an ESA when competing concerns about other owners’ allergies exist.

 

Under the Fair Housing Act’s guidelines, an owner is entitled to an ESA as a reasonable accommodation if the owner demonstrates that they have a disability and that the ESA is necessary and reasonable to alleviate the effects of their disability.  To determine whether a requested accommodation is reasonable, or if the emotional support animal can be denied, “the burden that the requested modification would impose on the defendant (and perhaps on persons or interests whom the defendant represents) must be weighed against the benefits that would accrue to the plaintiff.”  Hollis, 760 F3d at 542.  A requested accommodation is not reasonable if it imposes undue financial or administrative burdens or a fundamental alteration to the nature of a program.  Id.  The US Department of Housing and Urban Development has provided guidance entitled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” which provides:

 

The FHA does not require a dwelling to be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. A housing provider may, therefore, refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal (e.g., keeping the animal in a secure enclosure).

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Pet rules do not apply to service animals and support animals. Thus, housing providers may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed but can, as noted, limit based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration.

Whether an owner is entitled to an ESA as a reasonable accommodation is a fact-dependent inquiry.  As outlined in Bennett, the concern of another owner’s allergy to the requested EDA is an issue for the HOA to consider as part of the reasonableness inquiry.  In such an event, the HOA should consider whether the ESA poses a “direct threat to the health or safety of other individuals.”  Another owner who is allergic to the ESA may have their health threatened due to the allergies caused by the ESA.  However, the threat of a potential allergic reaction is likely insufficient to allow the HOA to deny the ESA request.  Instead, there must be a specific allergic reaction caused by the ESA.  For example, in Bennett, two known allergic reactions were caused by the presence of the dog, with a third potential allergic reaction that was averted by switching that hospital worker’s duties.  Accordingly, if you are a homeowners association wondering whether an emotional support animal can be denied based only on a statement of another owner that they are allergic to the ESA, the answer is likely no.

It can be challenging to balance owners’ needs when it comes to competing interests concerning one owner’s request for an ESA and another owner’s desire not to have the ESA due to their allergies.  The FHA and caselaw require a homeowners association to carefully review an owner’s request for an ESA and decide whether to grant or deny the emotional support animal based on the facts and circumstances.  The Bennett case counsels that a homeowners association should not automatically deny a request for an ESA due to another owner’s allergies.  Instead, the HOA should weigh the disabled owner’s need for the ESA against any actual direct threat to the other owner; the potential for an allergic reaction is likely insufficient to deny the request. A homeowners association facing competing concerns over an ESA may also consider whether there are any reasonable alternatives for the disabled owner, such as a device that minimizes the spread of pet dander or restricting where the ESA would be allowed.

In sum, there is no clear ruling in the state of Michigan that answers whether or not you can deny an emotional support animal due to pet allergies. When in doubt, an HOA should contact an experienced community association attorney to discuss its options in responding to an owner’s request for an ESA when there is a competing allergy-related concern.

 

Michael T. Pereira, Esq., is an Attorney with Hirzel Law, PLC, and focuses his practice on general counsel matters and document amendments. Mr. Pereira graduated from the University of Detroit Mercy School of Law in 2018, where he graduated magna cum laude and second in his class. Following graduation from Detroit Mercy, Mr. Pereira spent nearly three years with the Michigan Court of Appeals as a research attorney and as a law clerk to Judge Patrick M. Meter and Judge Anica Letica. Since joining Hirzel Law, PLC, Best Lawyers: “Ones to Watch” has recognized Mr. Pereira in 2023 through 2025 for professional excellence in real estate law. He may be reached at  (248) 478-1800 or mpereira@hirzellaw.com.