Monday, February 4, 2013

Emotional Support Animals in Community Associations


          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 mjposner@warddamon.com  


23 comments:

  1. This is an issue that we as Realtors run into frequently. In most cases, the prospective buyer is not really in need of the dog - but is attached to the dog. I have had them tell me they were going to go get a dog and then claim emotional issues to make the association comply. I can see the real estate contracts and disclosures going through yet another change in coming years! I may seem cold, but I believe in living by the rules of the community. If your life changes, except in dire circumstances, and your life no longer fits into the community's profile, you move. You do this if you buy a one bedroom, then marry and have 2 kids. Or, when you buy into a community such as mine where only 2 cars per unit are allowed and find that you now have a teen who wants a car. The needs of the community as a whole must be respected. I think that strict regulations regarding how to address a legitimate emotional support animal should be in the covenants of communities so the homeowners know what to expect.

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  2. I think it's great how these lawyers can do everything from animal rights to being real estate lawyers kitchener ontario. They can make a huge difference for their clients.

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  3. My brother would really find this article useful because he is trying to find a good real estate attorney in Newton. Thank you for sharing.

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  4. Why not just allow one pet per person, two per household maximum. No vicious animals allowed. And the homeowner assumes all responsibility for any damage or injury? Limiting the weight of dog doesn't make sense. Among the most gentle, friendly breed is the Golden Retriever coming in at about 100 pounds. We had one for ten years.

    I used to think the emotional support defense was largely bogus, until recently. My daughter graduated HS in the top ten of her class from one of the top ranked schools in the state. Now at a top ranked state university, she lives alone in a two bedroom apartment. The other bedroom has been vacant all year. Her 4.6 GPA plummeted to 2.7. She experienced serious depression and anxiety from living in "solitary". Being under medical care and taking medication has helped some as well as the two plus hour drives home regularly to be with family and friends.

    She has been asking for a car for months to help with the loneliness. I said no. The apartment doesn't allow it. So she signed a lease for next year at a place that allows pets. She had the opportunity a little early to get a free, and beautiful if I may add, kitten.

    Getting a kitten has been amazingly helpful to her attitude and her grades. She's back to 3.8 for the summer semester as an engineering student. How much the companionship and love this kitten gives her has helped was stunning to me. And I had been a pharmacist for 25 years, still licensed.

    But OMG, what I have been going through get her current place to allow her to keep her kitten for the last 6 weeks under ADA and Florida Statute 413.08, which defines disability and service animal more broadly than FFHA, is equally stunning. A reasonable accommodation for a short time is all we ask. It's no consequence what-so-ever to the apartment or other tenants to allow her to keep this kitten in her apartment. She agreed to be 100% responsible for any injury or damage, and ensure it’s no disturbance to the other tenants.

    I'm retired as a pharmacist and a Realtor now full time in Florida. I see this occasionally and advise landlords to make the accommodation, no questions asked. The cost, risk, and consequence of fighting and losing is too great. Besides, just from a business perspective, the tenant is your customer. Treat them as such.

    Landlords and communities, just make a reasonable accommodation or fair pet policy. Don’t make people’s lives more difficult than they really are. Pets are like family to many people. Even more-so sometimes. Make the rules that the pet owner must be responsible. No barking, use the scooper, home/per owner pays for any injury or damage. Honestly, I don't understand the hard line some people take with pets. It should be with the pet owner.

    Anonymous, for hopefully obvious reasons.

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    1. 100% of pet owners think they are "responsible" 50% actually are. The remaining 50% are outraged that anyone object to anything the animal does. There are very, very few communities today that do not allow pets and 99.999% of those are in Florida, virtually nowhere else. If you will give me a dollar for every community that *I* take you to that allows dogs, I will give you five dollars for every community *YOU* take me to that doesn't. But for some reason this just will not do. There can be no place free of these animals.

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    2. Thank you for letter.
      Maybe you can help me. I currently moved to miami beach from PA and I have had 2 cats for 10 years now. The condo association does NOT allow any pets. I am either going to sneak them in or talk to management. I hear they are VERY strict on rules around here though so I am scared.
      Without going into detail I have major depression for the last 15 years where I was actually inpatient hospitalized for 2 weeks in 2012. My cats are legitimately emotional support animals and not just "love them very much". I have a very good letter from my psychiatrist/psychologist who I go to once a week for years now. It seems to state everything I would need.
      Before I go to them I want EVERY kind of proof I can get.
      Is there a place to register a pet online or what about this "Chilhowee Psychological Services" place?? Does all that place do is give you a letter which I already have?
      I don't mind paying for whatever extra stuff I could use to show proof. I legitimately showed me allowed to have my cats and just want EVERYTHING possible to show them.
      Any advice would be greatly appreciated.

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  5. Wow, typo about. Correction:

    She has been asking for a *cat* for months to help with the loneliness.

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  6. I remember a women who complained to me that while on vacation her husband ran out of his heart medication. She was outraged at the "pig-headedness" of the pharmacist that refused to refill his expired prescription. "He could have died" she whined. Yes and you could have taken him to a doctor or the emergency room to obtain a prescription. We all have our rules. An "opportunity" to get a free kitten is not a rare event. As president of a condo I get to field the complaints about barking "emotional support animals" and dogs off their leashes. You could have obeyed the rules you agreed to when you signed the lease or moved her out early and paid whatever it took for the emotional well being of your daughter.

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    1. Or u could open YOUR eyes, n realize that chihuahuas fall into the weight limit of "permitted" pets, but are the most likely to violate the noise ordinance! I have a neighbor with two yappy little dogs. They bark so much, they annoy their own owners! Who then put them out on the back porch (fenced) to get a break, where they increasingly bother all of US. MANY of our neighbors have taken it in turns calling the police, animal control, etc about the barking. These ppl have gotten fines--$168 per yappy pooch! But the Homeowners Association still approves of these dogs based on size/weight. I'll have u know, I own a sweety of a pit bull, n I keep her right in our apartment. She never barks (take that back, she barked once--when a drunken belligerent man began banging on our door looking for a friend--wrong apt-, and threatened to kick the door in. She did bark with an authoritative, business bark). She "hugs" n "kisses" all willing participants in our community. Her favorite pal is a little red-headed 2yr old boy in the next building. I would take my 60lb pit over any of those yappers--any day of the week. And so would all of our neighbors. Just food for thought. Oh, PS... My pit can hold her"business" for 14 hrs at a clip (not that we test this out on a reg basis). The neighbors little dogs caused the owner of that unit to have to remove the RUGS after only 2 months of them living here. More food for thought for those that rent to other people. Little dogs= little bladders

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  7. As a realtor in Naples, Florida, I can say that more and more clients are looking for condos which allow pets. Newer condos almost always allow pets. It is the older buildings where pets are not welcomed. Many of these condos are in need of renovations, and could be brought "back to the future" by not only building materials but new revisions to condo rules. Pet friendly buildings sell faster and can command a higher price. Dogs and cats are not just pets, they are members of the family.

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    1. I have no doubt that pet friendly buildings buildings sell faster. But I also have no doubt that those folks who are disparately seeking a quiet, quality, clean and elegant home and lifestyle would pay far more than the usual market price for the prospect of not being forced to lie down with dogs. I also have no doubt the quality of these people -- meaning respect and consideration for others living in close quarter -- would be far greater than what you're going to get with quick sales to those who see nothing unusual about dogs voiding in the living room and ridiculous recreational barking for the whole neighborhood to either tolerate or face the "evil dog hater" attack of those who actually consider these animals superior or equivalent to the spouse they've long divorced or the children they've never had.

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  8. I can't believe that in this day and age there are still stupid rules regarding pets. It seems that it is the older buildings with their aging tenants that are so anti- pet. Perhaps a few of these old crusty folks could benefit from owning a pet. There are many published medical papers that prove pet ownership is good not only for physical health but also mental. Isn't it about the responsible pet owner and not the animal? I agree...they aren't just pets!!!

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  9. I can understand the concern of lawyers and associations with this outrageously unwarranted and bogus claim of an emotional support animal. So further harass a person with this diagnosis and they "will just go away" because they cannot jump through all the stressful hoops because they are a liar until proven innocent, right? Well I am one of those people, and I am not bogus and neither is my ESA. PTSD is very real and I wish it was gone. To be accused of being a liar just proves the complete ignorance and bias of people who do not suffer from, nor understand such issues.

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    1. i totally agree with you i have PTSD and anxity and depression .. my dog was bought for my depression and she has got me through some crazy times and has helped me through surgeries we are joined to the hip! she is truly and emotional support dog and is registered with a prescription not all of us are liars

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  10. There is NO shortage of pet friendly communities. There are but a handful of places where I can go with any hope of not being subjected to the noise these animals make. Like militant vegetarians, "dog lovers" insist that there be no place on this Earth where those of us who don't share this animal proclivity can be left to live in peace and quiet in our own home.

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  11. I'm a dog lover and Rescue mom--I live in a community where 1-2 pets per household were allowed when I moved in as a renter--my Landlady was perfectly happy w/ me having a small dog (less than 9 lbs) and he is not a "yappy dog". All of a sudden the HOA decides to make changes to the pet rules and now only the "owners" that live here are allowed to have pets--NO RENTERs can have pets---WTH? I am a very responsible renter and dog owner--and now I am being told by the HOA that I can't live here anymore b/c some of the "riff raff" have caused problems and brought in dog breeds that aren't approved?!? How is that my fault--it seems to me they should take each case separately and not throw out the baby w/ the dirty bath water. Now my landlord wants me to try to obtain a certificate for an ESA so I can continue to live here and be her tenent...which I am certainly willing to do--but I am not disabled or have a crippling emotional disability...unless you take my dog away! That would be a cold day in HELL for someone to separate me from my dog and I know many people feel the same way. I don't have children--my dog is my child....ugh!

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    1. file:///C:/Users/Charlie/Pictures/2012-09-02%20002/doc24075520140711155959.pdf

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    2. July 9th, 1014

      Stacey Brouman is my patient, and has been under my care since 2003. I am intimately familiar with her history and with the functional limitations imposed by her disability. She meets the definition of disability under the Americans with Disabilities Act, the Fair Housing Act, and the Rehabilitation Act of 1973.
      Due to Crohn's disease, Stacey has certain limitations regarding losing all of her digestive organs and having a permanent ileostomy. Also, Stacey is on several immunosuppressants which leaves her vulnerable to severe infections. Stacey suffers from anxiety and due to her chronic illnesses. She has had several hernia operations and has difficulties with mobility and weight bearing objects. In order to help alleviate these difficulties, and to enhance her ability to live independently and to fully use and enjoy the dwelling unit you own and/or administer, I have prescribed Stacey to obtain a pet or emotional support animal. The presence of this animal is necessary for the mental health and physical well being of Stacey because its presence will alleviate her symptoms of anxiety by helping her with balance, stability and sensory perception.
      Sincerely,


      Sara E. Cruz-Luna, M.D.

      100 South Fort Harrison Avenue
      Clearwater, FL 33756
      Phone (727) 442-3126
      Fax (727) 447-4827










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  12. https://drive.google.com/file/d/0B98TcC92XkYFdHlQRXF4Ni02MWdGbzZ0cnR0clFZN1VFaUtB/edit?usp=sharing

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  13. This is the 3rd letter from the HOA. I am at a loss. I have been disabled nearly 20 years, own my own house with a HOA. The house is tenant occupied and applied to live in another community that is pet friendly. I am on my second service/support dog as my health conditions are grave. I am frail from cancer and lost all of my digestive organs due to advanced Crohns disease. My doctor has written 2 letters to the prospective attorney and yet they still want more info. as to how my dog helps me. I suffer from severe depression and anxiety due to PTSD from multiple surgeries and the effects of this process is exacerbating my conditions. My dog can sense and break the cycle of my panic attacts by pawing, nudging, and laying her body over mine-(heavy weight soothing). Without her, i would not survive. Where can I go from here?

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    1. Hello Stacey,
      I wrote this above but maybe you can help me....
      Maybe you can help me. I currently moved to miami beach from PA and I have had 2 cats for 10 years now. The condo association does NOT allow any pets. I am either going to sneak them in or talk to management. I hear they are VERY strict on rules around here though so I am scared.
      Without going into detail I have major depression for the last 15 years where I was actually inpatient hospitalized for 2 weeks in 2012. My cats are legitimately emotional support animals and not just "love them very much". I have a very good letter from my psychiatrist/psychologist who I go to once a week for years now. It seems to state everything I would need.
      Before I go to them I want EVERY kind of proof I can get.
      Is there a place to register a pet online or what about this "Chilhowee Psychological Services" place?? Does all that place do is give you a letter which I already have?
      I don't mind paying for whatever extra stuff I could use to show proof. I legitimately showed me allowed to have my cats and just want EVERYTHING possible to show them.
      Any advice would be greatly appreciated.

      Delete
  14. Pretty good I just stumbled upon your blog and wanted to say that I have really enjoyed reading your blog posts. Any way I'll be subscribing to your feed and I hope you post again soon. Big thanks for the useful info.
    emotional support animal letter

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  15. Really very helpful information. Thanks for sharing.

    ReplyDelete