Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

How do you handle applications for sale or tenancy approval?  Who conducts the interview (if your community does interviews)?  Who notifies the applicant whether the board has approved or rejected the transaction? What information or criteria is evaluated and how does the board decide whether to approve or reject a transaction? 

Is the person that notifies the applicant exposed to liability for the Association's action?  A recent ruling in a case pending in the United States District Court for the Southern District of Florida reminds us that both Federal and State Fair Housing Laws apply not only to the Association as housing provider, but to individuals involved in the process if they committed or contributed to a discriminatory act.

The screening of prospective owners and renters is a complex and involved process. Although the authority to screen and approve is often granted to an association board in the governing documents, the language is typically vague and general, without specific guidelines instructing the board how to proceed. 

In the case mentioned above, the plaintiff applied to the association for approval of two (2) leases.  He intended to reside in one of the units and the other unit would house his elderly mother.  The condominium prohibited pets but his elderly mother had a doctor's prescription for an emotional support animal, so the plaintiff asked for a reasonable accommodation in the application itself.

The association rejected the application.  Its manager sent the applicant notice of denial.  The letter indicated that the association would be amenable to revisiting the application for the plaintiff, if it was not bundled with the application for tenancy approval for his mother.  The applicant's attorney demanded reconsideration in light of the Fair Housing issues.  Nonetheless, the manager informed the applicant, in writing, that the association "reconfirmed the decision to deny the rental", which prompted the lawsuit against the association and the manager, individually. 

The association filed a motion to dismiss the individual claim against the manager, after all he was only acting on behalf of the association which is a corporation.  The federal Judge denied that motion saying:

"[the manager] wrote the denial letter on behalf of [the association] and the letter reconfirming the denial, both with knowledge that a Fair Housing Act issue had been raised.  These allegations are sufficient under the Fair Housing Act case law and under [other cases] to deny the motion to dismiss"

This manager is now facing individual liability for communicating what may be determined to be a discriminatory act.  Makes you think twice, right?

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Board members are often asked to decide whether to approve or deny a request to keep an animal in a "no-pet" community.  Those decisions are highly scrutinized.

The Philadelphian Owners' Association (POA) faces discrimination charges filed by HUD over its process for evaluating requests for accommodation or service animals.  The charge seems to ignore differences between service animals as defined by the Americans with Disabilities Act (ADA) and emotional support animals required as accommodations under the Fair Housing Act (FHA).  If you are not familiar with those distinctions, please refer to a previous post titled "Lions, Tigers & Bears, Oh My ....The Difference Between Service Animals & Emotional Support Animals".  The Firm's Community Update addressed distinctions between ADA and FHA recently as well.  Please read "Do You Have to Build a Ramp?  Fair Housing Laws Collide".

In this new charge HUD contends that the POA:

• required burdensome and invasive medical documentation before requests for accommodation would be considered,
• severely limited access to the complex's facilities for residents accompanied by assistance animals, and
• failed to address several instances of harassment of residents requiring assistance animals.

 This charge alleges that the Association's requests for verification are improper - more than improper, illegal.   The charge specifically says:

Respondent POA‟s pet policies discriminate against persons with disabilities in need of an assistance animal in many ways. For example, persons with disabilities who use an assistance animal may not enter the following areas when accompanied by their assistance animal: passenger elevators, lobby, lobby sitting rooms, library, art room, social rooms, swimming pool areas, fitness rooms, library, mailroom, common areas, management office or laundry room. In addition to its denials of valid reasonable accommodation requests, Respondent POA‟s pet policies seek private medical information from a resident requesting an accommodation, to which it is not entitled.

Will this charge result in a finding of discrimination and fines, penalties or damages assessed against the association?  The board was entitled to request verification of the disability and need for accommodation in Hawn v. Shoreline Towers Phase I CAI, but that case did not involve claims that the association facilitated a hostile environment for persons with disabilities by failing to stop intimidation and harassment by other residents.

I encourage your association to adopt a policy for handling requests for reasonable accommodations under the FHA.

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The Sun-Sentinel included a story about a South Florida condo owner this week.  The condo owner filed a law suit against the condominium association for discrimination, claiming that the association failed to make a reasonable accommodation.  The deaf owner reportedly demanded the association to make arrangements and pay for a sign-language interpreter at meetings, shows or condo activities, so he can participate in those activities.

Community leaders and managers should know that the Fair Housing Act prohibits any person to refuse to make a reasonable accommodation in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit.  The use of the dwelling unit likewise includes the public and common use areas available to unit owners.  

The housing provider (community association in this context) must make requested accommodations unless:

1. the accommodation imposes an undue financial or administrative burden, or
2. requires a fundamental alteration in the nature of its program.

There is a big distinction between accommodations and modifications under the Fair Housing Laws.   A modification is generally defined as any change to the public or common use areas of a building or any change to a dwelling unit.  In 2008, the Department of Justice (“DOJ”) and the Department of Housing and Urban Development (“HUD”) issued a Joint Statement providing technical assistance regarding the rights and obligations of handicapped persons and housing providers under the Act relating to reasonable modifications.  The Joint Statement gives examples of modifications that are typically considered reasonable, such as:

1. widening doorways to make rooms more accessible for persons in wheelchairs;
2. installing grab bars in bathrooms;
3. lowering kitchen cabinets to a height suitable for persons in wheelchairs;
4. adding a ramp to make a primary entrance accessible for persons in wheelchairs; or
5. altering a walkway to provide access to a public or common use area.

Modifications are made at the expense of the person requesting the modification.  Accommodations are made by the housing provider and can result in an expense to the housing provider.  However, if the expense creates a financial burden on the housing provider, it is not reasonable.  The Joint Statement issued by DOJ and HUD regarding reasonable accommodations says you determine whether a requested accommodation presents an undue financial and administrative burden on a case-by-case basis taking various factors into account, such as the cost, the resources of the provider, the benefit of the accommodation, and whether alternatives
would meet the disability-related needs.

So, what will happen in this case?  We'll have to wait to hear whether the costs to all of the owners and the administrative burden placed on association management make this particular request unreasonable under the circumstances.

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Association leaders and managers must comply with federal and state anti-discrimination laws.  That's a given.

Association leaders and managers, therefore, cannot enforce certain policies and procedures when a resident (prospective resident or someone associated with a resident) is entitled to an accommodation due to disability.  Persons suffering from various medical, mental and emotional conditions can meet the statutory definition of disabled or handicapped and are therefore entitled to accommodations in association rules or policies, if that accommodation is necessary to provide the person with disabilities with the full opportunity to enjoy the dwelling.

With all that in mind, would you think a Board of Directors must accommodate a request for permission to use medically prescribed marijuana to treat cancer, debilitating back injuries, glaucoma or otherwise?  Community association documents typically prohibit any illegal use of the property, but does the board have to make an exception?

HUD says NO when it comes to public housing, public services, activities or programs.  A HUD memorandum issued in January of this year explains why public housing agencies, owners of federally assisted housing or owners/operators of facilities or services subject to the ADA would not have to allow the use of medical marijuana.   There are two primary reasons cited in the memo:

First -

Section 504 of the Rehabilitation Act (part of the Fair Housing Act) and Title II of the Americans with Disabilities Act (ADA) don't generally apply to Condos & HOAs.  Both of these laws exclude any illegal drug user (regardless of the reason) from protection.  The law says:

The term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs...

Thus, someone who is disabled (i.e. blind, deaf, mobility impaired, etc.) will not be considered disabled within these statutes if there is illegal drug use.

Second -

Illegal drug use, by itself, will not eliminate protection for disabled persons under the FHA.  This law is very relevant for community associations and claims based on an association's failure to accommodate a disability are almost becoming commonplace.  HUD's general counsel takes the position that a request for permission to use medical marijuana is just not reasonable and therefore does not have to be granted.

An accommodation isn't reasonable if it:

1. requires a fundamental alteration in the nature of the housing or the provider's operations; or
2. imposes an undue financial and administrative burden on the housing provider.

The use of medical marijuana isn't legal in Florida and that's probably why I haven't encountered any requests for accommodations of this type.  However, several states across the country are allowing its use.  Therefore, community leaders should check with counsel before blindly rejecting any request along these lines.

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The case against a condo association in Century Village reported by the Sun-Sentinel prompted me to alert readers of the consequences associated with violations of state and federal fair housing laws. If you aren't familiar with the case click HERE for the most recent article.  In short, Broward County filed a lawsuit against the condominium association for discrimination and retaliation because it refused to grant a resident permission to keep a small dog after her doctor gave her a prescription for the dog as an emotional support animal.

Please keep in mind that there are consequences for unlawful discrimination, which includes the failure to make a reasonable accommodation or allow a reasonable modification if necessary to ameliorate the effects of a disability.

Florida Fair Housing Act – Administrative Remedies
The complainant may file housing discrimination Complaint with the Florida Commission on Human Relations.  The Commission (or local agency) is generally required to first attempt informal methods such as conferences with the parties, conciliation agreements, and persuasion. If the complaint cannot be resolved within 180 days, the complainant may commence a civil action in the appropriate court, or may petition for an administrative hearing.  If the Commission determines, as a result of its (or a local agency’s) investigation, that there is reasonable cause to believe that a discriminatory practice has occurred, the Attorney General, upon request of the aggrieved party, must bring an enforcement action and may also institute a civil action.  As an alternative, the Commission or local agency may commence an administrative proceeding pursuant to the Florida Administrative Procedures Act (Chapter 120 of the Florida Statutes).

Florida Fair Housing Act – Direct Civil Action
The Commission (or local agency) may commence a civil lawsuit.  That lawsuit must be filed within two years after an alleged discriminatory housing practice has occurred.

Federal Fair Housing Act – Administrative Remedies – Complaint and Investigation
In addition to the remedies set forth in the Florida Law, an complainant may elect to file a Complaint of a discriminatory housing practice with the Secretary of Housing and Urban Development.  If the agency concludes that prompt judicial action is necessary to carry out the purposes of the Act, it may immediately bring a civil action for appropriate temporary or permanent relief plus damages and penalties. 

Federal Fair Housing Act – Administrative Remedies – Action after Investigation
If a charge is issued, either party (the accused or accuser) may elect to have the claims asserted in the charge resolved in a civil action. If that happens, the Attorney General files suit on behalf of the complainant in federal district court. If the case continues through the administrative process, and the administrative law judge (ALJ) finds discrimination, he or she shall grant "appropriate relief", which may include an award of actual damages, injunctive and equitable relief, and civil penalties against the offender.

Federal Fair Housing Act – Direct Civil Action
The complainant may bring an action in federal district court.  Exhaustion of administrative remedies is not a prerequisite to bringing suit, however a suit may not be commenced after an ALJ has commenced a hearing on a charge involving the same discriminatory practice.

Federal Fair Housing Act – Enforcement by Attorney General
When the Attorney General has reasonable cause to believe that a person or group of people are engaging in a pattern and practice of discrimination that raises an issue of general public importance, the Attorney General may commence a civil action in the appropriate federal district court.
 

Community leaders can consult with counsel to develop a policy or procedure for handling accommodation requests.

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Which Controls - the ADA or FHAA?

The ADA prohibits discrimination by private entities such as hotels, motels, inns, and other “places of public accommodation.” Discrimination under the ADA includes the failure to remove architectural and communication barriers that are structural in nature in existing facilities where such removal is readily achievable. Title III of the ADA also requires a public accommodation to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. Condominium buildings may be deemed places of public accommodation if they operate as “places of lodging” or are open to the general public.

The Federal Fair Housing Amendments Act (FHAA) says a housing provider (including a community association) cannot discriminate in the sale, rental or terms of housing because of a handicap of a buyer or renter. Discrimination on the basis of a handicap includes a refusal to make a “reasonable accommodation” in rules, policies and practices or services when such may be necessary to afford the disabled person equal opportunity to use and enjoy the dwelling. An increasing number of condominium residents are seeking exemptions from “no pet” policies, based on a need for (often on advice of their doctors) a companion animal as a means of combating a variety of illnesses, including depression, anxiety, arthritis, and heart disease. The association may, therefore, have to allow a resident to keep an animal on the property despite the published rules.

Is the accommodation only for service animals as defined by the ADA?

Recently the Department of Justice modified the rules defining the term “service animal.” The Department’s final rule defines the term "service animal" as

"any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition….”

This may cause you to say “wait, if the Department of Justice limits service animals to dogs, why would the association even have to consider a request for permission to maintain a cat, bird or other animal on the property?” or “if the Department of Justice says that service animals must be trained then shouldn’t the disabled person have to show what training the animal completed?” Sounds perfectly reasonable, right?

The Department of Justice explained an important distinction between a service animal for ADA purposes and a support animal for FHAA purposes. The new rules limit service animals to dogs, but that doesn’t mean that housing providers can prohibit the use of other animals as a reasonable accommodation for a disability pursuant to the FHAA.

In the final rule, the Department excluded emotional support animals from the definition of "service animal." The ADA definition says that emotional support, well-being, comfort, or companionship will not qualify as “work” or “tasks” for the purposes of determining whether an animal is a service animal. Therefore, emotional support animals are not necessarily service animals (although a dog can qualify as both at the same time).  The U.S. Department of Housing and Urban Development confirmed exactly that in a memorandum directed to fair housing enforcement officers and regional counsel.

What does this all mean for community associations?

The Association cannot dictate the type of animal it will approve as an accommodation. The Board of Directors must permit the accommodation as long as the resident qualifies for that accommodation. I suggest that you consult with counsel to evaluate the criteria in each case, based upon the specific facts and circumstances presented.

What about training?

The training issue is still debatable and debated. There are some cases that say the innate qualities of the animal are enough to ameliorate the limitations arising from the disability. There are others that say the person requesting the accommodation must demonstrate some training. I know the fair housing investigators in both Broward and Palm Beach Counties will issue a finding of probable cause if the association rejects an accommodation request solely as a result of lack of evidence the animal is trained.

What does it mean for persons with accommodation animals?

It means that even though your dog, cat, ferret or parrot is an accommodation/emotional support animal, you may not be entitled to bring it to restaurants, the mall, the supermarket or other places of public accommodation.

This is a “hot-button” issue in many communities across the country. Community association boards should consider whether it is appropriate or advisable to adopt policies and procedures for handling accommodation requests.

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Associations, community leaders and managers are often the target of housing discrimination claims.  It is against Florida law to discriminate against anyone with respect to sale, rental or terms and conditions of housing based upon race, color, national origin, sex, handicap, familial status or religion.

New HUD rules would expand the categories of persons entitled to protection on a federal and sometimes state level, depending on the program.  HUD seeks to clarify that housing cannot be denied based on marital status, sexual orientation, or gender identity and, further, specify that all eligible families will have the opportunity to participate in HUD programs.  These categories of protected class are already included in many local ordinances throughout Florida.  You can review the proposed text of the rule HERE.

HUD already defines the term “family” with a broad scope in connection with many of its housing programs.  Its definition includes a single person and families with or without children. HUD’s proposed rule would clarify that families where one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship would not constitute a basis for excluding those families from HUD benefits. The current definition of the term ‘‘family,’’  is based on the U.S. Housing Act of 1937 (42 U.S. 1437a) (1937 Act).  Section 3(b)(3)(B) of the 1937 Act provides as follows:
 

Families.—The term ‘‘families’’ includes families with children and, in the cases of elderly families, near-elderly families, and disabled families, means families whose heads (or their spouses), or whose sole members, are elderly, near-elderly, or persons with disabilities, respectively. The term includes, in the cases of elderly families, near-elderly families, and disabled families, 2 or more elderly persons, near elderly persons, or persons with disabilities living together, and 1 or more such persons living with 1 or more persons determined under the public housing agency plan to be essential to their care or well-being.

There are various resources on this site that address discrimination issues, such as:

Condos & HOAs: It Pays NOT to Discriminate - Case Examples 

Do Group Homes & Assisted Living Facilities Violate HOA Covenants & Restrictions? 

55 & Over Housing: What is the 80/20 Rule? 

We will continue to address discrimination issues in the future and alert you to new cases or administrative decisions from time to time.
 

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The Federal Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).  Florida State and local ordinances likewise prohibit housing providers, including community associations, from discriminating against anyone protected by the law.

You may have an understanding of the fair housing laws and also know that discrimination on the basis of handicap (or disability) includes the refusal to permit reasonable accommodations or modifications.  Are you aware of other protected classifications? Local ordinances, on a county and/or municipal level, also govern actions of housing providers. In addition to the classifications mentioned above, some local ordinances include age, marital status, political affiliation and sexual orientation in the protected classifications. 

Community associations need to be aware of the local ordinances.  A board member or manager may make a statement or take an action in violation of the law for what seems like a perfectly valid reason.  In some cases those decisions ultimately required the association (or management) to pay thousands, even hundreds of thousands, of dollars in damages and penalties.  Some examples include:

• National Origin Discrimination found when the housing provider charged Russian applicants a fee over and above the fees charged to American applicants. 
• An association paid $15,000.00 to a homeowner after it refused to allow him to install a window air conditioning unit in his home.  The homeowner suffered from pulmonary asbestosis, asbestos-related pleural disease, and chronic "irritative" bronchitis.
• Discrimination found when a condominium association would only allow an owner to install a ramp at the rear entrance of her building if she agreed to sign a release stating that she would maintain the ramp at her own expense. 

The Justice Department just announced its largest settlement of a housing discrimination case.  The housing provider (property management) paid $1.25 million to settle claims of failing to grant reasonable accommodations to disabled persons.  Assistant Attorney General Thomas E. Perez said: “Property owners and managers have no excuse for violating our nation’s fair housing laws by refusing to accommodate people with disabilities.”

Board members - please take the time and the effort to understand these and other fair housing requirements.

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The Federal Fair Housing Act  (FHA) prohibits discrimination in any activities relating to the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status or national origin. The term "familial status" is defined as one or more individuals (who have not yet attained the age of 18 years) being domiciled with a parent or guardian or a designee of such parent. State statutes (Chapter 760, Florida Statutes) and local ordinances also regulate housing discrimination in regards to age, marital status, political affiliation, sexual orientation and other classifications.  Adding "familial status" to the list of protected classifications made former "adults only" communities either apply for an exemption or change their practices.

The most common exemption is known as the Housing for Older Persons Act (HOPA) exception that applies to communities operating as “55 or over” housing. To qualify for this exemption, the following criteria must be met:

• At least 80% of the occupied units must be occupied by at least one resident over the age of 55;
• The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the Association) to provide housing for persons 55 years of age or older.
• The community must engage in adequate age verification procedures and routinely determine the occupancy of each unit to update the community census; and - here in Florida
• The community needs to register with the Florida Commission on Human Relations and keep that registration current.

If the community does not qualify for the Housing for Older Persons exemption, it must allow families with children.  It doesn't matter if there are no other children.  It doesn't matter if the community doesn't have facilities for children or a place for them to play.  A community in Orange City, Florida recently agreed to pay $415,000 in monetary damages and civil penalties after the court found that the defendants violated the FHA by engaging in a pattern or practice of discrimination against families with children.  The Department of Justice prosecuted the lawsuit against the housing provider.

The Fair Housing Center of the Greater Palm Beaches recently filed suit against a condominium association in Boca Raton, Florida for familial status discrimination.  The association first rejected a sale to a man with three children and later refused to approve a tenancy where two children were expected to live in the unit.  Both governmental agencies and private fair housing advocacy groups use "testers" in support of discrimination claims.

If you're not sure your community is in compliance with the requirements of the Housing for Older Persons Act, please consult with legal counsel.

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Pinellas County Assists Homeowner With Battle Against Homeowners Association Over Operation of Assisted Living Facility.

HOA restrictions and covenants typically contain provisions limiting use of the property to a "single-family" residence.  These use restrictions likewise typically prohibit any "business" or "commercial" use of the home.  However, as discussed in other posts on this blog, enforcement of deed restrictions or covenants may implicate other laws, particularly the Fair Housing laws.  Associations are prohibited by Federal, State and many local laws from discriminating against  protected classes.  Unlawful discrimination includes, among other things, the refusal to make a reasonable accommodation in policies or practices and interference with the lawful use and and enjoyment of the residence.

In the past, Florida courts have interpreted Section 419.001(2), (addressing community residential houses), and Section 393.062, (addressing developmental disabilities), of the Florida Statutes as support for the premise that a group home is the functional equivalent of a single family residential unit and does not justify enforcement of deed restrictions to the contrary.  In at least one of the cases the court found that the association must show the use (three unrelated disabled adults) constitutes a nuisance and the mere fact that the residents of the home were not related was not a violation of the single-family use restriction.  Another case found that enforcement of the prohibition against commercial or business use was discriminatory as applied against a particular small group home.

The county has joined efforts on behalf of an owner, based upon a legal memorandum prepared by the County Attorney's Office, after a finding of reasonable cause was issued by the Pinellas County Office of Human Rights.  TBO.com reported the story.

What does this mean for Homeowners Associations?

• First - community leaders and managers must be aware that fair housing laws may impact enforcement or other board decisions.
• Second - it is important to create fair housing policies and procedures to evaluate fair housing claims, requests for accommodations or modifications and the transfer approval process.
• Third - do not treat fair housing investigations lightly.  Work with counsel and the investigating office - the investigators attempt to conciliate these matters before issuing any findings.
• Fourth - review your insurance policies.  Many policies do provide coverage for defense and other costs.

Finally, there are many educational resources available to community leaders and managers.  Take advantage of those opportunities. 

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55 & Older Housing  - what does that mean?

The Federal Fair Housing Act prohibits discrimination because of race, color, religion, sex, handicap, familial status or national origin.  Many States have their own Fair Housing Act - in Florida Chapter 760 of the Florida Statutes is dedicated to discrimination issues that expand the protection to age and marital status. The term 'familial status' generally refers to occupancy by children (person under 18) with parent, guardian or designee of the parent.   So why or how are there 55 & older communities?  Well, every rule has exceptions, right?  The Fair Housing Act is no different. 

The Housing for Older Persons Act (HOPA) is an exception that allows communities to operate as “55 or over” housing. To qualify for this exemption, the following criteria must be met: 

1. At least 80% of the units must be occupied by at least one resident over the age of 55; 
2. The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the association) to provide housing for persons 55 years of age or older; and
3. The housing provider must engage in appropriate age verification procedures that includes a community census from time to time.

Ok - at least one person 55 or older must reside in at least 80% of the occupied units.  What do you do with the other 20%?

On April 1, 1999 the United States Department of House and Urban Development (“HUD “) published Federal Regulations implementing the Housing For Older Persons Act of 1995 (“HOPA”).  Basically, HUD does not care how a community handles the 20% “cushion" as reflected below:

There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that “at least 80%” of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older. Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they wish, as long as “at least 80%” of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.
 

Does that mean a community that desires to sustain is Housing for Older Persons status should let everyone in up to the 20%?  No, not really.  The "cushion" is designed to allow the housing provider (association) to permit exceptions when appropriate.  If a couple resides in a property and one is 55 and the other not, do you, as a community leader or manager, want to be put in a position that requires you to say "you're in violation" if the resident over 55 passes away?  What if the couple gets divorced?  What if someone resides with their adult child?  In our view, the 'cushion' is exactly that - something that protects you or softens the requirements to avoid unpleasant results.

Does your community qualify as Housing for Older Persons?  Community leaders that aren't sure should consult with counsel, as penalties for discrimination (even unintentional discrimination) can be harsh.

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Many communities were marketed as 'adult communities' and the governing documents contain provisions prohibiting permanent occupancy by children.  Are they legal or enforceable?  Joseph Adams provides a brief explanation.

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Court Rules in Favor of Association After Board Requests More Information Regarding Need for Service Animal

U.S. District Court, Northern District of Florida
Case No.: 3:07-cv-97-RV/EMT

On March 12, 2009 the United States District Court for the Northern District of Florida entered Summary Judgment in favor of a condominium association sued for purportedly violating the Fair Housing Acts. Summary Judgment was also granted in favor of the association on a claim of Intentional Infliction of Emotional Distress.

The issue? A request to keep a pet, oops, not a pet, but a certified service animal, on the condominium property.

Shoreline Towers Phase I had a long-standing “no pet” policy. Mr. Hawn knew that at the time he purchased his unit in 2004. However, in 2005, he urged the Board to allow owners to keep pets on the property after he adopted a puppy. The Association took no action in response to that plea.

Over a year later, Mr. Hawn requested permission for a reasonable accommodation due to a disability. As noted elsewhere, the Fair Housing laws require community associations to make reasonable accommodations in policies or practices and allow reasonable modifications to the physical property if necessary to afford a disabled person the equal opportunity to use and enjoy the dwelling. Mr. Hawn claimed he was disabled (within the meaning of the law) and his dog ‘Booster’ was a trained, certified service animal. He also provided the Board with two (2) letters, one from a psychologist who indicated Mr. Hawn suffered from severe panic attacks and prescribed a service animal to help him cope with his disability. The other letter was from a chiropractor who said a service animal would assist Mr. Hawn with mobility issues.

Mr. Hawn likewise addressed this issue again with the board at a meeting, describing how important ‘Booster’ was to him.

The Board requested documentation to support Mr. Hawn’s claim. It also asked for the qualifications of the medical providers that supplied the two letters. There was no response.

A few weeks later the Board requested more information specifically about 1.) the nature of the impairments; 2.) how the pet was necessary to overcome the impairments; and 3.) whether there were other corrective measures that would serve the same or functionally equivalent purpose. The request for permission to keep the pet was denied pending receipt of further information.

Instead of providing additional information, Mr. Hawn filed a complaint with the Florida Commission on Human Relations (FCHR). The investigator issued a finding of “Reasonable Cause” to believe a discriminatory act occurred which prompted Mr. Hawn to file a lawsuit in Federal Court for discrimination in violation of both the Federal and Florida Fair Housing Acts. Mr. Hawn also sought damages for Intentional or Reckless Infliction of Emotional Distress and Injunctive Relief.

Someone is entitled to damages, injunctive relief, or both, from a housing provider for discrimination if they show:

1. They are disabled (as defined by the law) & the housing provider knew or should have known of the disability; and
2. An accommodation (or modification) is necessary to afford the disabled person the equal opportunity to use and enjoy the dwelling; and
3. The requested accommodation (or modification) is reasonable; and
4. The housing provider denied or refused to make the requested accommodation.

The Court found that the Board was perfectly well-within its right to question the disability claim, especially since Mr. Hawn obtained the dog a year earlier, lobbied to change the rules without any mention of a disability and failed to provide further information upon request. Once discovery took place, the Association learned that Mr. Hawn only had two appointments each with the psychologist and chiropractor that wrote the initial letters. The Court found that the information initially provided was not sufficient to prove that the Board “knew or should have known” that Mr. Hawn was disabled and therefore failed to show that the Board knew the accommodation was reasonably necessary. The Court stressed the requests for additional information and the temporary nature of denial, concluding that Mr. Hawn could not show the Board wouldn’t make an accommodation if he was able to show the accommodation was necessary to ameliorate the effects of the disability.

Community associations should learn important lessons from this favorable case. First, it is important for all community leaders and members of the management team to be aware of the obligations of housing providers pursuant to Federal, State and local fair housing laws. Second, requests for reasonable accommodations or modifications cannot be ignored and must be addressed in a logical way. Finally, it is important to consult with legal counsel as these are highly charged and sensitive issues.

We will report on any updates or appellate decisions regarding this case. If you haven’t done so already, please consult with your Community Association Attorney about creating fair housing policies and procedures for consideration of requests for accommodations and/or modifications.

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 Community Associations are Entitled to Request More Information When Determining Whether to Grant Animal Accommodation

Community Associations are often confronted with requests to keep animals on the property as a reasonable accommodation pursuant to the various Fair Housing Acts[1]. This issue is frequently addressed in newspaper articles and television as well as national magazines.  As Kevin’s post from March 17th aptly stated:

the owner needs to provide documentation that he/she suffers from a disability or handicap. This needs to come from a licensed medical professional. The physician must state that the disability involves a substantial impairment in one or more of life’s major functions. In addition, the physician should explain how the animal is needed to overcome or deal with the substantial impairment of a life function.

When an owner or resident does not receive the answer they desire from the Board or Management, filing a discrimination claim with the local enforcement agency is usually the next step. Unfortunately, the investigations seems to lean heavily in favor of the complainants and determinations of “reasonable cause” that a discriminatory act occurred naturally upset community leaders, especially in cases when the members of the board followed the advice of counsel and truly believe they have not engaged in any wrongdoing. At that point the board members often “give in” and negotiate for accommodations that are not believed to be warranted under the circumstances (possibly opening the floodgates for additional requests), usually to avoid the expenses associated with challenging the determination.

Some of the consternation expressed by board members (and other community residents) results from the apparent lack of specificity required on the part of the person requesting the accommodation. Websites have sample letters and forms for physicians and other medical providers to fill out for the purpose of enabling patients to request prescription pets. Investigative agencies reportedly have “approved” these forms. While community leaders and other residents complain about how easy it is to have a medical provider write a letter prescribing a pet as a necessary accommodation, boards don’t have many choices available if the letter, or prescription, contains the information required by law. In fact, some of the investigative agencies have issued a finding of “reasonable cause” solely as a result of an Association’s request for more detailed information concerning the major life function impairments and how the animal will lessen the effect of those impairments.

Recently, however, the United States District Court for the Northern District of Florida granted summary judgment in favor of a condominium association that requested more information from someone requesting a pet accommodation. In Hawn v. Shoreline Towers Phase I Condominium Association, Inc., et al, the Court found that the person requesting the accommodation “failed to establish that the board knew the accommodation was necessary” because he did not provide sufficient information about the major life functions that were claimed to be impaired nor did he adequately described how the pet was necessary to overcome those impairments. As this is an important ruling for community associations, I will post a casenote to this blog explaining the facts and the ruling in detail.

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Condominiums and other common interest housing communities have a long history with trying to enforce their use restrictions. These battles often stir much passion. However, rules that ban or limit the size of dogs, cats and other household pets seem to strike an especially sensitive nerve. Many owners love animals and cherish the companionship that a dog or cat can provide. But such owners often find themselves living in an association with these types of "pet" restrictions. Do they need to try and amend the deed restrictions or move to another complex where pets are permitted? Not necessarily. If they suffer from high blood pressure, high cholesterol or depression a pet just may be the right medicine. In addition to the regimen of statins and anti-depressants to treat these ailments, doctors have now apparently discovered a panacea for these and other related illnesses; the emotional support animal.

The dilemma that many directors face is trying to enforce pet restrictions when an owner produces a doctor's note (often written on a prescription pad) telling the Board that he or she needs the pet to help treat the owner's depression or high blood pressure. While the Board must provide reasonable accommodations for an owner who requests assistance in living due to a disability or handicap, the definition of "disability" has become so broad in its interpretation that almost anything can qualify. A disability or handicap is any condition that limits a person's major life activities (e.g. walking, talking, seeing, hearing, and breathing). Courts now routinely agree that mental illness such as depression or bi-polar disorders are disabilities. Similarly, high blood pressure is probably now a disability. If an owner requests a dog or cat to assist them with their particular disability, the Board may have to permit the pet as a reasonable accommodation.

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