Q. I live in a 40-unit condo building, which has a no-pets amendment from 1980. A woman purchased a unit and has been seen with a dog, and the dog barks all the time. She signed all the disclosure forms stating “no pets, no renters,” and has given the board a note from a nurse practitioner claiming that the dog is an emotional support animal. What can we do?
— Exasperated Neighbor
A. “To begin with, a ‘no pet’ amendment does not apply to service or emotional support animals (such as the dog in your question),” said attorney Michael C. Kim of the Chicago-based firm Michael C. Kim and Associates, “because such animals are not considered pets. Prohibitions against pets or regulations regarding pets cannot be used to prevent an owner from having an animal if it is required as a reasonable accommodation for that owner’s disability. The emotional support dog should be viewed in the same manner as a cane, wheelchair or walker; accordingly, the disabled person is entitled to have the service or support animal accompany him/her in the building, whereas a pet may not be allowed in certain areas. Disabilities can be physical as well as psychological in nature. As long as the owner can establish that he/she has a disability (as defined under applicable federal and state law) and that the animal is considered by the owner’s treating professional as an appropriate means to address that disability, then the condominium association must allow for that animal to be on the property, regardless of any pet related prohibitions.
“Unless the disability is obvious, the association is entitled to reasonable substantiation that the owner has a disability and that the dog is deemed an appropriate means to deal with that disability. Unlike service animals, emotional support animals do not require any particular or specialized training. The evaluation and treatment of a disability may be done by a medical doctor as well as by other health care professionals (such as a psychologist or a social worker); as for the nurse practitioner, the appropriateness of that professional can be considered. The law does allow the association to obtain reasonable substantiation, but it cannot be overly intrusive or unnecessarily burdensome.
“The emotional support animal is still subject to reasonable regulations and restrictions related to health, safety and behavioral problems. Thus, the owner of an emotional support dog is responsible for picking up after the dog, is responsible for any damage caused by the dog, cannot permit the dog to pose a threat or nuisance to others, and must comply with governmental vaccination and licensure requirements.
“If the dog is creating a nuisance by constant barking, the owner can be required to have appropriate training or measures undertaken that would alleviate such incessant barking. As for the ‘note’ given by the owner to the board of directors, the law does permit the board to have certain fundamental factors addressed in the note to substantiate the owner’s disability and the requirement for the dog. Since this is a potentially complicated and controversial subject matter, the board should consult with the association’s attorney for guidance on this situation.”