Q. Our building maintains a strict ‘no pets’ policy, but we have received a request for reasonable accommodation for an Emotional Support Animal (ESA). Given the most recent HUD enforcement changes, how can we evaluate this request without exposing the building to housing discrimination liability? 

                                            —Getting it Right  

A. “HUD enforces the federal Fair Housing Act, which is a federal law that prohibits discrimination in the sale, rental, and use of housing, protecting people on grounds including disability, race, religion, national origin, sex, and familial status,” says Mark Hakim, partner at Schwartz Sladkus Reich Greenberg Atlas LLP. 

 “Many buildings have no-pet policies or restrictions on pets. An issue arises when a person requests an exception to the policy, asking for reasonable accommodation for an emotional support animal. By law, co-op and condominium boards must make an exception to its no pets rule when a resident has a disability and the emotional support animal helps alleviate its symptoms or effects.

 “When a New York City board fails to grant an accommodation, the tenant can sue, but also may file a complaint with HUD (which enforces the federal Fair Housing Act), the NYC Commission on Human Rights (which enforces the City Human Rights Law), and New York State Division of Human Rights (which enforces the State Human Rights Law). These agencies have the right to impose quite hefty fines and penalties for a violation,” says Hakim. 

 “In New York City, the no pets policy is not the end of the inquiry. An emotional support animal need not be trained to perform a task and if the animal helps alleviate the effects of a tenant’s disability, the building generally must allow an exception unless doing so would cause an undue hardship. Upon receipt of a request, management should acknowledge the request promptly in writing and hold off on enforcing the no pets rule against this resident while the request is being reviewed. 

“I recommend that only a limited number of people should handle communications, and keep any medical information confidential. If the tenant’s disability or the need for the animal is not apparent or already known, the building may ask for a statement from a treatment provider confirming that the tenant has a disability and that the animal helps alleviate its effects. I would recommend that the board not ask for the diagnosis or medical records, nor insist on a particular form, nor require proof that the animal has been trained. However, if the statement leaves a genuine question unanswered, ask the tenant for clarification.

 “Any concern about the animal should be based on the animal’s actual conduct. The no pets rule, its breed or size, objections from neighbors, and speculation about possible damage are generally insufficient grounds for denial. If there is a documented safety or nuisance issue, management should discuss whether it can be addressed before deciding.

 “If the request is approved, the building may require the resident to take reasonable measures, such as leashing the animal in common areas, cleaning up after it, and paying for damage it actually causes. It should not charge a pet fee or extra deposit, require additional insurance, or direct the resident to use a different entrance or elevator.

 “I always advise boards to be mindful that there are significant legal pitfalls (fines, penalties, lawsuit, etc.) for a violation of the law and to duly consider these requests,” Hakim cautions. “Always have a good-faith discussion with the tenant and issue a written decision at the end of the process. For any denial, without question I would get the building’s counsel involved and review any such proposed denial—particularly if it rests on safety or undue hardship. A board’s best protection is always a proactive and transparent approach including a prompt, individualized review with a clear record of what information it considered and how it reached its decision.”