Ask an Edina Realty Lawyer: Can I bring my emotional support animal to my new condo?

Homeownership can be complicated, but we also think it’s one of the most rewarding ventures out there. In our series, Ask an Edina Realty Lawyer, we are hoping to demystify some of the trickier aspects of buying, selling and owning a home.

In this edition, one of our lawyers discusses the interplay between condo rules and government regulations about service and assistance animals.

Dear Edina Realty Legal,

I am looking at moving to a condo, but I have a cat that provides emotional support. If a condo building has rules prohibiting pets, do those rules apply to my cat?

A homeowners’ association (HOA) has the power to adopt a variety of rules that affect how unit owners may use their properties. A condo HOA commonly has restrictions related to animals in the building. Some may restrict by size, number or breed, while others might not allow any pets at all. When it comes to animals used by the disabled, these pet restrictions may run into conflict with a variety of regulations.

There are two common terms for animals that have some protection under the law:

1. Service animals
2. Assistance animals

What is a service animal?

When you think of an animal used to help a person with a disability, you might be thinking about what’s called a service animal under the Americans with Disabilities Act (ADA). The ADA, a federal law that in part ensures that the disabled have full access to places open to the public, defines a service animal as any dog that is individually trained to do work or perform tasks for a person with a disability.

Under the ADA, disability is broadly defined and includes mental impairments that substantially limit a major life activity.

There are two main restrictions to keep in mind when discussing service animals:

• Dogs are the only animals that can qualify as service animals. This might include a dog that assists a person who is blind.
• While the ADA broadly defines a disability to include mental impairments, an emotional support animal is not considered a service animal under the ADA.

Disabled persons have the right to bring their service animal into places open to the public (like a condo sales office) even if animals are otherwise prohibited. But most of a condo complex (like a condo unit itself) is not open to the public and the ADA and the corresponding right to have an assistance animal do not apply. That’s where the concept of an assistance animal comes in.

What is an assistance animal?

An assistance animal is a term used by the Department of Housing and Urban Development (HUD) in connection with the Fair Housing Act, which, in part, requires housing providers to make reasonable accommodations for disabled persons.

According to HUD, an assistance animal is one that provides assistance benefitting a disabled person or that provides emotional support to alleviate one or more symptoms or effects of a person’s disability. Unlike registered service animals, an assistance animal doesn’t necessarily have to be a dog.

Under the Fair Housing Act, an HOA with a no-pets policy might be required to allow an assistance animal as an accommodation to a disabled person.

So, do I get to have my emotional support cat in a condo that restricts all pets?

This probably sounds like a typical lawyer response, but it depends on the individual circumstances.

When faced with a request for an exception to the no-pets policy, an HOA must answer two questions:

1. Does the person have a disability? If the disability is not readily apparent, the HOA could request documentation from a professional of the disability.
2. Does the disabled person need the animal to provide assistance or emotional support that helps alleviate the disability? Again, the HOA could ask for documentation to help determine this.

If the answers to both questions are “yes,” the HOA must allow the animal with a couple of limited exceptions (i.e., if the animal would pose a threat to others or the animal would cause substantial damage to the property of others).

This topic can sometimes be an emotional one, as animal owners may be asked to validate the legitimacy of their support animal to a skeptical, but powerful, audience.

If you are considering buying a condo in a building that prohibits or limits animals, you would be wise to look into how the HOA will handle the issue up front. A good real estate agent can help you navigate this issue.

The Edina Realty Legal Department serves as in-house counsel for Edina Realty and does not represent private clients. This Insight is not intended to provide legal advice.