ESAs and ADA at this NYC Condo

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E.C. from Bronx, NY writes:

Dear Mister Condo,

I own a condo in the Bronx which I would like to rent out. The tenant I would like to rent to has 2 dogs that are registered as Emotional Service Animals (ESA). My condo board just changed the bylaws to 1 dog. Federal law states a landlord cannot deny this person rental. I, the owner, don’t mind at all, but my board is telling me no. Do I have a legal leg to stand on to rent it to her anyway?

Mister Condo replies:

E.C., you have touched upon a subject that is quite controversial, not just in New York, but across the country. As a landlord you have to be particularly careful as to how you handle the rental request so that you don’t end up on the wrong side of a discrimination lawsuit. As a condo unit owner, you don’t want to create a problem between your tenant and the Board which could end up in court with you being charged with numerous violations and fines from the Board. I think you would prevail under current trends but do you really want to fight that battle?

As you know, I am not an attorney and I really must advise you to speak with an experienced attorney before you make your decision. At the heart of this issue is ESA certification of the dogs and how does the condominium association need to respond to that certification. There are plenty of articles and court cases about the validity of ESA certification and if the Americans with Disabilities Act (ADA) applies. If the courts were to decide that your tenant and both of the dogs were protected under ADA, there is little the Board could do to prevent your tenant and both dogs from residing in the condo. That being said, that doesn’t mean they won’t try and their attempts to prevent the tenant from housing two dogs on the property, against condo rules, may prove trying and expensive. I imagine there will be fines and hearings, even possible eviction actions against your tenant depending on how determined the Board is to enforce the one dog rule. Of course, you will either need to defend or hire an attorney to defend against these actions. Provided the courts find in favor of you and your tenant, you may be able to recoup these costs by suing the Board for damages.

I am not saying you should not rent to this particular tenant. If they are tenant-worthy on all of your other criteria (credit check, references, etc.) you may well wish to take them on as their landlord. Please enter into the transaction with your eyes open and realize that the debate is still raging over ESAs and their rights to protection under the ADA. If ESAs are not deemed protected, you may find this a very costly rental. At the very least, I think you will find it a challenge. Good luck!

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