Do you live in a condominium, co-op, or a home managed by a homeowners’ association? Wondering what they can and can’t do? Boca Raton-based attorney and author Ryan Poliakoff has the answer.
Question: We have a small apartment complex with 30 units. We have 3 units that have dogs even though our bylaws prohibit pets. We have filed paperwork for emotional support animals for 2 of the units, but apparently they paid for the paperwork online, which seems fraudulent. For the 3rd unit with 3 dogs, we have sent 2 certified letters from an attorney demanding the paperwork and removal of the dogs, but they have been ignored.
The management company told me they need $20,000 for a lawyer to go to court to get the dog out, and if they file emotional support paperwork at the last minute, the management association will foot the $20,000 bill. It’s a small apartment and we don’t have that kind of money. Do you know if there’s anything we can do to get the dog out? What’s the point of having a no pets rule if you can’t enforce it? Signed, DP
Are they pets or service dogs? Condominium associations are fighting a potentially costly battle to prove that residents are getting around the rules by classifying their pets as service animals.
Dear D.P.,
We have discussed two distinct issues. The first is the issue of how to enforce governing documents regardless of the nature of the violation. The second concerns the available exceptions related to those specific violations and to favorite rules in general.
Community associations have two main ways to enforce their covenants and rules.
First, they can fine or suspend the violating resident’s right to use the common areas. To do so, they must follow a specific statutory procedure. This procedure requires the board to promulgate the fine (or suspension), then give 14 days’ notice of the fine to anyone who will be fined or suspended, and an opportunity to be heard by the independent committee. The independent committee has the right to approve or reject the fine (but cannot change it; they can only say “yes” or “no”). They can fine or suspend residents who violate the pet policy and fail to provide sufficient documentation to support their request to adjust the pet rules (more on this later). This general process is free, but enforcing either fine will require legal intervention (and the associated costs).
The second is to take legal action against the violators and ask the court to issue an order to comply with the governing documents (in this case, an order to evict the illegal pet). Before taking such action, you must either send a pre-suit demand for mediation and then file a lawsuit in court, or send a pre-suit demand for mediation and then file a petition for mediation with the condominium board. I recommend the former, because the outcome of a mediation case can be contested in a “de novo trial,” meaning you can basically start all over again in court. So, anyway, I prefer to just mediate and then settle the case in court.
Now, let’s talk specifically about pet rules. The reality of the current legal environment is that no-pet buildings exist anymore. Fair Housing Act requires buildings to comply with rules for people with disabilities, including allowing animals if they help treat a disability. That being said, you have the right to a meaningful inquiry into the nature of your disability (if it’s not visibly obvious) and how it relates to the need to comply.
As you know, it’s very easy to buy an emotional support animal certificate online, but the government says that such certificates are not enough evidence to justify the need for an accommodation. They can reject these certificates and require a letter from someone who can attest to the disability and need for the animal (usually a treating medical professional). It’s very likely that these two residents will be able to get a legally sufficient letter, but it’s worth going through the process to get one.
As for the owner who is ignoring your requests, the lawyer is quoting $20,000 for the legal process. I don’t know if they are quoting a flat fee or just an estimate, but it’s cheap. Most lawyers would not be able to complete a mediation and full-blown trial for that amount (unless the case is uncontested).
However, if you sue the resident and they suddenly provide legally sufficient documentation after not responding, this is unlikely to completely wipe out your rights to recover costs. You have the right to investigate, and the resident has an obligation to provide the information you request. If the resident refuses, you may be able to recover legal costs incurred in forcing them to cooperate. This is something you should discuss further with your lawyer.
But also consider that we’re not really talking about spending $20,000 here, but rather spending several thousand dollars in mediation and litigation, with the owner making concessions at some point before or after that process. This is an entirely separate investment, and ultimately, you’ll have to spend money to enforce the governing documents. There’s no way to do this completely free of charge.
Ryan Poliakoff is a partner at Poliakoff Bakker LLP and a certified expert in condominium and planned development law. This column is written in memory of Gary Poliakoff. Ryan and Gary Poliakoff are co-authors of “New Neighborhoods – A Consumer’s Guide to Condo, Co-op & HOA Living.” Email your questions to condocolumn@gmail.com. Be sure to include your neighborhood.
This article originally appeared in the Palm Beach Post: Are no-pet buildings enforceable in the age of service animals?
