Q: A condo association that has a no pet policy, does have a few owners/tenants with emotional support animals. To protect the common elements, as well as for other owners who may be allergic, the Board wants to have a rule that requires the emotional support animal owner to transport their animal in the building, either by the use of a wagon or carrying the animal. Is this legal?
A: Probably not. The instructions from HUD are pretty clear that special rules cannot be imposed on persons with service/emotional support animals without a real showing of potential harm. A handler of a service or emotional support animal is not even covered by the leash law if the leash will interfere with providing the service. The Association has the right to demand removal of an animal that is not under the control of the handler while in the public/common areas but also has the burden of proof of a real threat to health or safety. In a situation where there is actual or realistic threat to health and safety or the owner fails to meet their financial responsibility to repair damage, the Association still would need to show that they worked with the owner to address the problem in the least restrictive way and that the owner cannot be “reasonably accommodated”. There are several cases citing Associations for demanding that owners have liability insurance which is just another variation on the theme that the Association cannot impose restrictions based on unfounded risks involved. So, requiring the animal to be carried or transported in a wagon while on the common area would not seem to meet the reasonableness test nor do I think it could be demonstrated that such a rule would appreciably affect a person with allergies.
Richard D. DeBoest, II, Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. T o ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.