Condominium and Homeowners Associations which ban or limit the size of pets are under increased attack by homeowners strongly desire to bring fluffy or killer, a 60 pound pit bull into their homes in violation of established of the Association. Traditionally it was not difficult for Association to ban these types of pets and to obtain court injunctions requiring removal and recovery of attorney's fees and costs. However, in recent years, a new strategy has been developed by homeowners to keep their strongly desired pets by utilizing two sets of laws which may make it impossible for Associations to continue to ban or limit pets.
The first law, the Americans with Disabilities Act, requires associations to make a reasonable accommodation for disabled people who need service animals to assist permanently disabled people in their daily lives. This is a very common need and the law is strongly established in favor of allowing disabled people to keep their service animals in Association property regardless of any restrictions provided in the regulations of the Association. This is typically, for example, the need of a blind person to have a Seeing Eye dog. These types of accommodations must be made and associations have limited recourse to ask questions about the disability or the animal’s qualifications to serve as a service animal.
Physically disabled persons with the need for service animal are not the issue in question. Instead, it is a question of a mental disability or emotional disability that is now the basis for an alleged need keep an animal in the home. The Fair Housing Act, a federal law with a similar Florida-based law states that associations must make reasonable accommodations to assist disabled people in residing within their community. Based on these laws, homeowners have sought the right to keep pets to assist them with their emotional and or mental problems claiming that these animals are Emotional Support Animals and not just pets.
Associations are being presented letters from mental health specialists or physicians claiming that Fluffy or Killer is necessary for the mental or emotional health of the homeowner. The homeowner then presents the letter to the Association and demands a reasonable accommodation to allow the pet to reside in the community even though the association bans or limits the size of pets.
The biggest problem facing Associations who do not want to allow any pets or pets that exceed the maximum weight permitted at the Association is the question of whether the requesting homeowner is truly in need of medically based mental or emotional support which can be provided by an emotional support animal. For example, you can spend $114 over the Internet and obtain an emotional support letter from Chilowee Psychological Services. Simply answer a few questions and out pops your letter. Given the easy ability to obtain a letter many Associations have adopted a comprehensive package of documents, solely for the purposes of weeding out the truly disabled from those seeking to game the system solely to get a pet.
In Sun Harbor V. Bonura, the Florida appellate court in 2012 held that in order for a homeowner to prevail on a denial of allowing an emotional support animal, the following tests must be met: (i) the homeowner must have a handicap; (ii) the Association must have knowledge of the handicap; (iii) that an accommodation may be necessary to afford the homeowner an equal opportunity to use and enjoy the dwelling; (iv) that the accommodation is reasonable; and (v) the associations refusal to make the requested accommodation. Ultimately, the Appellate Court found that the homeowner did not meet the required tests because the handicap was not sufficiently evident to require the support for the need for the pet , and the letter from the professional did not give enough information to the Association to understand the basis for the handicap or the need for accommodation.
When confronted with a request for accommodation, Associations must also keep in mind the need to limit excessive requests for information. A recent federal decision in the Middle District of Florida (Bhogaita v. Altamonte Heights Condominium Assn., Inc.) the court granted partial summary judgment to the pet owner on the grounds that the associations multiple, detailed requests regarding the homeowners mental and physical conditions far exceeded that permitted under the Federal Fair Housing Act. Simply put, one (or possibly two) detailed requests should be sufficient for the Association to determine whether and accommodation is required and challenging the physician repeatedly for more information will not likely be permitted.
Based on the foregoing, Associations should be proactive in adopting emotional support animal policies and procedures (before the next request) that requires, but is not limited to, an application, and an affidavit from a licensed person as part of any approval process of an emotional support animal. Failure to properly accommodate disabled persons can lead to an expensive and time-consuming lawsuit, as well as recovery of attorney's fees and costs .
Michael Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County. The firm represents numerous Associations and can assist in adopting emotional support procedures for their clients as well as all other Condo and HOA matters. They can be reached at 561.842.3000, on the web at www.warddamon.com and by e-mail at firstname.lastname@example.org