Don't like having to prove dog is service animal to HOA? Blame the law, not the lawyer

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.

Editor's note: The following letter comes in following up to a previous column in which a writer reported that condo residents were skirting a no-pet policy by submitting "emotional support animal paperwork that seems fraudulent, as they appear to have gone online and paid for certificates."

Question: Quoting from your recent article about dogs in condos, “It’s very likely that these two residents can get legally-sufficient letters — but it’s worth making them go through the motions to do so.”

What if those people are being honest? Is it still worth making a disabled person spend even more money? It’s biased advice and assumes the guilt of the people in the unit. I hope it won’t backfire on anyone, because if my HOA did any of what you suggest to me, I’d have them in court for harassment. Signed, R.G.

And:

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You’re very, very, very wrong about asking about a disability. I have PTSD. If a landlord asks me what my disability is because I don’t look disabled, I should, legally, be able to smack them upside the head. Signed, N.W.

Dear R.G., N.W., and many others:

All of my columns regarding animals get a very strong response, and the last column was no exception. I had other responses to my column that, sadly, suggested even more violent acts.

I don’t write laws. I explain to readers what the laws, along with the court cases interpreting those laws, say about the issues raised in my questions.

R.G., how would the housing provider possibly know if they are being honest without asking for verification? The law is that, when a person requests an accommodation under the Fair Housing Act, housing providers may make a meaningful inquiry into the nature of the disability (not the specific condition, necessarily, but the fact that the person is disabled — that the condition affects one or more daily life functions, among other things), and that there’s a connection between the disability and the need for the accommodation. You say that if your HOA asked you, a person who is not visibly disabled, for information verifying your disability and need for the accommodation, you would “have them in court for harassment.” I appreciate that having to validate your disability is unpleasant and intrusive, but it’s also what the law expressly allows. You would not succeed if you sued your HOA for simply asking you to provide the legally permitted verification of your disability. You are asking for an accommodation, and the price of the accommodation is to verify your disability-related need for that accommodation.

You say that I was assuming the “guilt” of the people in the unit, but all I’m doing is acknowledging that people can (and do) lie about being disabled in order to justify keeping their pets. If a person submits only a certificate they purchased online with absolutely no verification required, what information would the housing provider use to verify that they are legitimately disabled? If the housing provider were prohibited from questioning the disability, accommodations requests would all be granted without question — but that’s not what the law says or allows.

And to N.W., I’m not “wrong,” I’m just stating what the law actually is. If you suffer from PTSD, which is a disability that cannot be visibly verified; and if you refuse to give your housing provider evidence that verifies your need for an accommodation of its rules and procedures, then they can reject your request. If you don’t like that law, I absolutely respect and understand that — but your complaint is not with my “wrong” answer, it’s with the people who write the laws.

You and others who feel similarly could contact your senators and representatives and encourage them to amend the fair housing laws to limit a housing provider’s ability to verify a person’s disability.

I will note that the right to verify the need for a “service animal” (an animal that is specifically trained to provide a function for a disabled person) pursuant to the Americans With Disabilities Act is much more limited. But, that law applies to places of public accommodation like hotels, shops and restaurants, and not to housing providers. They are different laws with different applications.

Given the state of the law on the issue, no person should be offended if their housing provider asks them for additional information to verify that they are entitled to an accommodation of the rules pursuant to the Fair Housing Act.

The board has a duty to the other residents as well; and in many communities, residents feel strongly about their “no-pet” rules, too. Would I, personally, live in a building or community that did not allow pets? I would not — but that’s a personal choice for me to make.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.