Community Update

Benefits and Drawbacks of Electronic Voting

By: Florence King

Electronic voting for condominiums, cooperatives and homeowners’ associations was introduced in Florida in 2015. However, now, more than ten years later, some associations still question whether electronic voting is a viable option for their communities.

Click here to read more!

Mind the Invisible Lines: Easements Every Board Encounters

By: S. David Cooper

They may be invisible, but easements run throughout your community. What are they, and why do you need to understand them? At some point, nearly every board will encounter an issue that requires an analysis of easement rights to answer the question, “Can we do that?” 

Click here to read more!

When Does the Condominium Act Require an Affidavit?

By: Mary R. Hawk

In many sections of Chapter 718, Florida Statutes, also known as the Florida Condominium Act, the statute requires an “affidavit.” An affidavit is a written declaration or statement of facts, made voluntarily and confirmed by sworn oath or affirmation in the presence of a notary public or other officer having authority to administer an oath.

Click here to read more!

Bhogaita v. Altamonte Heights Condominium Association, Inc.
765 F.3d 1277 (11th Cir. 2014)

By: Joseph Markovich

THIS CASE shows how a condominium association’s response to a disability accommodation request can potentially lead to liability, damages, and attorneys’ fees. In January 2012, Ajit Bhogaita alleged that Altamonte Heights Condominium Association, Inc. constructively denied his request for a reasonable accommodation after it demanded removal of his dog, which exceeded the condominium’s twenty-five (25) pound pet limit, and then continued seeking additional and increasingly detailed information even after receiving multiple letters from his doctor stating that the dog was prescribed to help him cope with his post-traumatic stress disorder, chronic anxiety, and depression. Although the district court recognized that an association may conduct a meaningful review of an accommodation request, it held that the Association wrongfully persisted in seeking more – and largely irrelevant – information after sufficient support that the dog was needed as a disability accommodation had been provided, rather than timely granting Bhogaita’s request.

The district court concluded that the Association had constructively denied Bhogaita’s accommodation request as the result of making repeated demands for more information once the disability and the need for the requested accommodation were established. Notably, the Association posed questions about why a smaller dog would not suffice and what individualized training the dog had received. The court reasoned that even if some of those inquiries might arguably have been reasonable, other requests went too far. In particular, the court found that the Association had continued seeking details about Bhogaita’s diagnosis, treatment, and related matters after he had already submitted three letters from his doctor supporting his accommodation request. The court determined that the Association had refused to make the requested accommodation, and an appeal followed.

The appellate court affirmed the judgment in Bhogaita’s favor, which incidentally awarded him $5,000.00 in compensatory damages and $127,512.00 in attorneys’ fees. The appellate court found that the Association’s repeated and escalating requests for additional information amounted to a constructive denial of the requested accommodation, and it rejected the Association’s arguments and justifications. r THIS CASE therefore stands as a cautionary tale and a warning that an association’s handling of an accommodation request can carry significant financial consequences when its inquiry exceeds what is reasonably necessary or continues once the request has been sufficiently supported.

THIS CASE draws the line between a lawful review of an accommodation request and conduct that can potentially result in damages and attorneys’ fees. Although associations are permitted to conduct meaningful and interactive reviews of requests for disability accommodations and may ask the requestor to establish the existence of any purported disability that is not obvious, the right to engage in interactive information gathering processes does not allow associations to make unreasonable or overly intrusive demands for information or to delay their consideration of sufficiently supported requests. As the courts recognized here, an indeterminate delay may amount to a constructive denial of the request. An association that fails to follow proper procedures under federal or state housing anti-discrimination laws may face substantial legal consequences, and any association confronted with a request for a disability accommodation should promptly consult association counsel on the proper steps to take.

Associations should also be aware that, given recent policy changes announced by the Department of Housing and Urban Development, it is a good time for associations to review any service animal and/or emotional support animal policies that they may have with legal counsel to ensure that they are following the current guidance.