Emotional Support Animal UPDATE
Written by: Steve Martin Smith
As a REALTOR, I subscribe to Florida REALTORS Legal News to stay on top of changes that could affect my customers and clients.
Recently, I came across this article written by Michael J. Posner, Esq., a partner in Ward Damon Law Firm which serves all of South Florida. This is often a hot topic for both buyers and sellers.
Some snippets I will include from his article, as outlined by Posner, cover the scope of fairness for real disabilities versus obvious fakes designed to get around no pet rules. As a Realtor, I have had this issue arise with associations that refuse to make an accommodation, and since I am not a lawyer - all I can suggest is that if the customer wants to push the issue with the HOA or Condo association – then please do so by hiring a lawyer to represent the cause. However, I have seen buyers shut out of an opportunity to purchase due to ignorance of the laws or outright refusal to comply. Some have used bullying tactics and profane language to strong arm against the purchase by outright denying the application of the customer. The customer mostly feels it is unjust, but ultimately decides that they cannot afford to fight it. They just move along to seek friendlier options.
Posner states that “given the continued uncertainty in the law, what can owners due in selling or renting their properties when faced with a request for a reasonable accommodation? One option is to give up on a no pet policy and simply allow all pets with some strict guidelines and a pet deposit (but no deposit may be taken or required for an Emotional Support Animal). This will hopefully eliminate most questionable requests and give the owner or association better control on how pets will be allowed, treated and handled within a rental or an association.”
He also adds an alternative suggestion, which is to just adopt an Emotional Support Animal policy and make sure the permissible rules are in place to address any future request for a reasonable accommodation. Posner goes on to add that “in adopting rules, it is clear that “ A landlord or homeowner’s association may not ask a housing applicant about the existence, nature, and extent of his or her disability.” Posner also clarifies “that this type of aggressive action will likely lead to penalties in a HUD administrative action.”
The following questions can be asked, and required to be certified by an applicable professional, says Posner. He listed them as follows:
1) That the person requesting the accommodation has a disability
2) That the person with the disability needs the subject animal or animals to assist with the disability; and
3) That the animal or animals in question actually assist the person with regard to the specific disability.
With this stated, Posner goes on to say, “Once these questions are certified by an appropriate mental health professional in the affirmative, no further questions may be raised.” The article then talks about having more than one support animal and according to Posner “…it appears that this is permissible under the Act, which is clearly designed to put the needs of the disabled person ahead of owners and associations who desire to limit animals.”
As for the association, he states that there are few restrictions that are designed to protect owners and associations. Posner writes “While a specific deposit may not be permitted, a tenant or owner is still liable for any damage caused by the Emotional Support Animal. Further, if the Emotional Support Animal poses an actual and not speculative threat of harm to others, or would cause substantial physical damage to the property, or actually causes harm or damage, then in such event the accommodation may be withdrawn.”
Here is his summation, according to Posner, he finishes this article with the following “ given the foregoing, and growing court and HUD decisions in favor of the “disabled parties” requesting a reasonable accommodation, it is recommended that landlords and associations both plan ahead in anticipation of such requests and to think long and hard about denying any reasonable request despite the feeling that the requesting party may be stretching the law to keep a pet in a no pet residence.”
You may contact Michael J Posner, Esq., at his Real Estate Law and Business Law practice, which can assist homeowners and associations in addressing Emotional Support Animal issues, and can provide all required disclosure forms. Michael J Posner can be reached by phone at (561) 842-3000 or by email at mjposner@warddamon.com.
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Steve Martin Smith is a Top 1% REALTOR who specializes in Residential New Construction and Resale in Sarasota County, including Venice and The West Villages.
SteveMartinHomes.com is the GO-TO Real Estate site for Sarasota, Charlotte and Manatee Counties.