But I’m allergic to your emotional support dog!” What’s a Board to Do?
By Kerry Lee Morgan, Esq.
It has been years since HUD announced rules defining assistance animals and imposing upon housing providers the duty to accommodate members who request assistance animals in order to overcome their disability. The typical approach is that either the Board or a special committee chosen by the Board reviews and evaluates a member’s request for an assistance animal, sometimes identified as an emotional support animal. They review the application along with an accompanying note from the member’s physician stating that an assistance animal is required and requesting the cooperative to accommodate that request. Most often this means that a cooperative with a “no pets” policy must make exceptions.
Naturally this upsets other members who have specifically wanted to live in a cooperative because it is a nice place to live and because it does not allow pets. No barking dogs. No smelly cats. Just peace and quiet. Sometimes a Board thinks that once the assistance animal is in place that the objections will die down. This is often, however, not the case. Conflicts most often begin to arise when the owner of an assistance animal takes the animal for a walk, or brings the animal into common areas, or walks the animal out into the parking lot. Sometimes the animal is leashed and other times it is not. Invariably other members are present, and questions and complaints begin to flow back to the Board. “Hey, I thought this was a no pet co-op.” “No, I have a right to the animal.” “You can’t have a dog here. I’m going to tell management and get you evicted.” “Your dog was about to jump up on me, I’m going to sue.” “Well I’m going to call my lawyer then.” By the time it gets to the Board things are already well out of hand. These are the sort of complaints you can expect to receive as a Board member, and you’ll have to deal with them. But how? Can we get rid of the animal? What do we do? What does the law say?
The worst thing a Board can do is get caught up in all the emotion of this member against that member and that member’s assistance animal, usually a dog. To deal with basic problems concerning animal etiquette, barking, odor, damage, and failure to pick up dog waste, Boards are free to adopt reasonable rules and regulations governing assistance animals, just as they would if they permitted pets and had rules and regulations governing pets. If your cooperative doesn’t have such rules and regulations, you’re really missing an opportunity to keep the complaints down as well as provide your members notice of what’s expected. While a Board cannot impose a financial assessment against a member with an assistance animal, it can otherwise regulate the conduct of the animal, especially to avoid conflict with neighbors, especially those who complain about animal misconduct.
At some point Boards will be told that one neighbor who is a member of the cooperative and resides in unit 305 for example, has an allergy and that he or she is allergic to the assistance animal residing in unit 306. It’s time to sit up and take notice. You have a problem brewing. It is certainly true that many members are likely to have various allergies including allergies to dog and cat dander and hair being the most common. In the United States, as many as three in 10 people with allergies have allergic reactions to cats and dogs. Statistically, they are living in your cooperative. Don’t just ignore it.
As these things go, it will probably happen at some point that the member in unit 305 likes to take a walk about the same time the member in unit 306 likes to walk his or her assistance animal. Unfortunately, they meet at the stairwell or the elevator or at a common area at the same time on their way outside. “I have a right to get in the elevator first.” “No, you don’t’.” “Well, should I avoid you or are you supposed to avoid me?” “I don’t know, but I’m as much a member here as you.” “Well, keep your dog away from me, I have an allergy.” If the Board does nothing at some point somebody will end up calling the police. The local television station will show up. The cooperative will see a Board member’s face on the 6 o’clock news. Is that how your cooperative wants to be known in the community?
What’s a Board to do? Too often the Board acts irrationally and attempts to evict the member with the assistance animal. But the law would not be on the Board’s side in such case. What is required is that the member with the allergy must also establish to the Board that he or she has an allergy by production of a medical note or certification to that effect stating that the member should not be around dogs or cats or the particular source of the allergy. If the allergic member produces such a note, then the Board must attempt to accommodate both members. It may have to offer to move one member to the other side of the cooperative or to a unit away from the other member. It may have to adopt specific policies about who gets on the elevator first and the presence of animals in common areas. Creative solutions rather than mechanical application of some policy you found on the Internet is required. Rash and harsh remedies are to be avoided.
This is where experienced legal counsel will come in very handy to assist the Board and help it avoid making the wrong decision for which it will end up paying more in the long run. Some Boards with limited funds are not inclined to contact legal counsel until, well . . . . until it’s too late and they have already been sued. It will probably cost more to rectify that situation than had the Board consulted an attorney early in the process. Of course, an ounce of prevention is worth a pound of cure. The best approach is to adopt well thought out policies in connection with assistance animals to begin with, which also addresses interaction with those who suffer from allergies. In this way, all the members know the rules and regulations. They know what is expected and what is not permitted. Good policies are the key to a good cooperative. Good Boards should not neglect them.