Sunday, March 29, 2015

What is your community's most outlandish emotional support animal request?



I am going to preface this blog post by stating that there are individuals who struggle with emotional disabilities and who can legitimately benefit from the use of an emotional support animal.



However, this blog post is not about those people.

Unfortunately, those of us who live in shared ownership communities, serve on their boards or represent these types of communities have all seen our share of abuse in this area. The legal pendulum seems to have swung very far in the direction of protecting the rights of people who want pets in "no pet" communities regardless if those people have fraudulently framed their requests as being a necessity for their emotional well-being. Meanwhile, the rights of people who specifically purchased a home in a pet-restricted community due to allergies and other health issues, fears/phobias or simply preference are not protected by the government with the same fervor and the board is often prevented from protecting their rights..

I have seen the following animals requested for emotional support:

  • Dogs
  • Cats
  • Birds
  • Monkeys
  • Mice
  • Snakes and other reptiles
  • Pigs
  • Miniature Horses
  • Ferrets

It is important to remember that even though the local Fair Housing investigators continue to remove most of an association's ability to properly evaluate an emotional support animal request, the ultimate accommodation still must be reasonable in nature. It is imperative that your board not go it alone when it comes to receiving and responding to one of these requests. Speak to an attorney who is well versed in these issues and who can provide you with the greatest likelihood of successfully navigating this minefield.

One owner in a "no pet" community claimed his girlfriend needed to bring her emotional support animal with her when she came to visit him for their occasional conjugal visits. The association fought this request and, with our Firm's help, prevailed. Another owner insisted that the dog needed by her late husband for depression is now needed by her since she is depressed in the aftermath of her spouse's death; that case is pending. Yet another owner requested a single parrot for his emotional issues and then decided he needed two more. He started bringing the parrots with him to the pool (sauntering around like a pirate according to some unhappy neighbors) and when the parrots started to attack others at the pool, all of the birds were removed since they were deemed to no longer be a reasonable accommodation.

So what is your community's most outlandish emotional support animal request and how did you handle it? 

To attend our class on emotional support and service animal requests, please visit www.bplegal.com/events.


Sunday, March 22, 2015

Why do some association boards decide to "go it alone"

I often wonder what variables factor into an association board's decision to forego professional management and an annual retainer relationship with a law firm in favor of "going it alone".

Naturally, money is top of mind for most directors when deciding whether to use professionals such as managers and lawyers for their community. However, financial concerns should not be the only topic of discussion during this debate. In addition to the costs involved. boards should ask themselves the following questions when deciding if they wish to be self-managed:


  • Are we comfortable with handling requests from owners and pursuing covenant violations directly as opposed to having a "cushion" provided by our manager?
  • Do we have the time, patience and expertise to follow through on the daily operations of our community?
  • Do we have the time, patience and expertise to follow through when something out of the ordinary arises like a fire, hurricane or other disaster?
  • Are other communities of our size and type typically managed professionally or self-managed?
I have lived in a Broward County homeowners' association for more than twenty years and our community has always been self-managed. Our community could really go either way. We are relatively small (98 homes) and do not have a plethora of common areas although we have enough features (private roads, green parks, gazebo, guardhouse, perimeter wall and gate) that do require consistent maintenance and oversight. Someone buying in our community may very well expect it to be professionally managed but would likely not be shocked to learn it isn't.

On the other hand, a high-rise condominium on the water would present a host of operational and maintenance challenges which might prove far too taxing for the average volunteer board of directors no matter how enticing the cost savings may be. This is when the old adage "penny wise and dollar foolish" comes into play.

As for boards who decide to forego legal assistance on issues like covenant enforcement, document amendments, contracts, insurance claims, hiring and firing decisions, land acquisitions, easements, recalls and more, the questions I would urge them to ask would be:
  • Is our D&O coverage current and high enough and do our actions in this matter exclude coverage?
  • Will we be able to hire the attorney(s) we want when we want them for this matter?
  • Are we willing to learn a lesson the hard way?
Sometimes boards relax into patterns and deciding to forego useful professional assistance can be a bad one. 


Friday, March 6, 2015

Words Matter: Is your Board precise with its terminology?


When you go to your doctor, it is helpful if you can accurately describe your symptoms so he or she can properly diagnose the problem. The same holds true when a volunteer board of directors meets with its legal counsel.

Boards can inadvertently make a legal diagnosis more difficult when describing a problem by not being concise with certain terminology.

For example, many directors will refer to a certain provisions being in their "Bylaws" as if it was a catchall term encompassing all of their documents. In fact, the Bylaws are one of several governing documents which comprise the foundation for association operations. In a condominium association, you will have a Declaration of Condominium, Articles of Incorporation and Bylaws. In a cooperative association, you will find Bylaws and a Proprietary Lease but no declaration. In a homeowners' association, your community will be governed by a Declaration of Covenants and Use Restrictions as well as a Bylaws and Articles of Incorporation. All of the foregoing shared ownership communities will also typically have separate rules and regulations.

When your board refers to your "Bylaws", your legal counsel is already picturing a certain document depending on your community type and it may not be the document to which you are actually referring.

Another area where directors can sometimes mislead association counsel and others is by referring to their community as a "homeowners' association" when, in fact, it is actually a condominium or cooperative association. True, every community is comprised of homeowners but an HOA is a very different entity than a condominium, timeshare, mobile home or cooperative community. When referring to your community either internally to other directors and members or to professional advisors and vendors, please use the correct term.

Lastly, some directors (and association members) still refer to Florida associations being subject to "the Sunshine law". While each of Florida's shared ownership statutes do require a certain level of transparency in association operations, Florida's Sunshine Law (Chapter 286, F.S.) pertains to governmental entities and not to private residential communities so saying that your association is "subject to the Sunshine law" is not technically correct.

Remember, being precise (and accurate) in the terms you use to describe your community and its issues can only help shorten the time it takes to diagnose and resolve those issues.