Ward • Damon - Emotional Support Animals: Are Condo and HOAs Being Taken Advantage of?
Condominium and Homeowners Associations that ban or limit the size of pets are finding themselves under increased scrutiny from homeowners who are seeking new legal loopholes to bring larger dogs into their homes, in violation of Association bylaws. Traditionally, it has been easy for associations 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, homeowners have utilized two sets of laws, allowing them to do an end-around on association rules and making it nearly impossible for associations to continue to ban or limit pets, even when there is a justified reason for doing so.
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 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 can often involve the needs 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. Legitimate physically disabled persons with the need for service animals are not the issue in question.
Rather, it is a question of a mental disability or emotional disability that is now the basis for an alleged need to 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.
The problem with this statute is that it is rife for exploitation from some homeowners who may not have a legitimate need for mental or emotional support, but rather are simply looking for a legal loophole to keep Fido as a pet.
Associations are being presented letters from mental health specialists or physicians claiming that Fido is necessary for the mental or emotional health of the homeowner. The problem is some of these letters can be easily obtained, regardless of whether a true disability is present.
For example, you can spend $114 over the Internet to obtain an emotional support letter from Chilowee Psychological Services. Simply answer a few questions, and out pops a letter. Because of services such as this, 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 have a pet in their home.
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 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.
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