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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 33703
Experience:  15 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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My son recently purchased a co-op in westchester county NY,

Customer Question

my son recently purchased a co-op in westchester county NY, the co-op's does not permit animals in the premise. My son happens to be profoundly deaf. He acquired a service animal (dog) the dog is a registered service animal, and my son has a letter from his doctor describing his disability and the need of a service animal. The Co-op management retained an attorney who issued a default letter. Does my son have any recourse
Submitted: 1 year ago.
Category: Legal
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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The Co-op management doesn't have a legal leg to stand on here.... This is because the Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional support/service animals, even when a landlord's policy explicitly prohibits pets. Because emotional support and service animals are not "pets," but rather are considered to be more like assistive aids such as wheelchairs, the law will generally require the landlord/management to make an exception to its "no pet" policy so that a tenant with a disability can fully use and enjoy his or her dwelling.

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In most housing developments, so long as the tenant/owner has a letter or prescription from an appropriate professional, such as a therapist or physician, and meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation that would allow an emotional support/service animal in the apartment.

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Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord/management must provide the accommodation.

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The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a "no pets" policy would qualify as a reasonable accommodation. See, e.g., Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995) (balanced against landlord's economic or aesthetic concerns as expressed in a no-pets policy, deaf tenant's need for accommodation of hearing dog is per se reasonable); Fulciniti v. Village of Shadyside Condominium Association, No. 96-1825 (W.D. Pa. Nov. 20, 1998) (defendant condominium association had not presented any evidence suggesting that the tenant's assistive animal created a threat or disturbance, and therefore violated the FHA by failing to provide a reasonable accommodation); Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, exhibit 2-2 (1998) (it would not constitute a fundamental alteration in the nature of the program or activity to require the Owner to make an exception to the no pets rule so that tenant could keep assistive animal, where "assistive animal" includes emotional support/service animals for people with chronic mental illness).

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Although the landlord/management is entitled to ask for support/servicing materials which document the need for an emotional support/service animal, federal law does not require the tenant to provide proof of training or certification of the animal. The two courts that have addressed this issue directly - the Court of Appeals for the Seventh Circuit and the U.S. District Court of Oregon - have held that the only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of an individual with a disability. For a more detailed discussion, see Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) and Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (Or. 1998).

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So the long and short of it is that if it is not an undue burden or a fundamental alteration, the management must grant the requested accommodation and cannot require any type of certification of the animal.

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I would suggest printing out a copy of this and handing it to the management letting them know that if they attempt to evict son based on him keeping a service animal, you will file suit for discrimination under the various laws cited above.

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks

Barrister

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