Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: We have a small 30-unit condominium. We have three units that have dogs, even though our governing documents prohibit pets. Two of these units have submitted emotional support animal paperwork that seems fraudulent, as they appear to have gone online and paid for certificates. As for the third unit, which has three dogs, we have sent two certified letters from our attorney asking for them to provide any paperwork or to remove the dogs, and they’ve ignored us.
Our management company tells us our attorney wants $20,000 to take them to court to have the dogs removed; and if they provide emotional support paperwork at the last minute, the association will be responsible for paying the $20,000 fee. As a small condominium, we don’t have that kind of money. Are you aware of anything we can do to get these dogs removed? What good is having no pet rules if they can’t be enforced? Signed, D.P.
Dear D.P.,
You’ve described two distinct issues. The first is a question of how to enforce your governing documents, regardless of the nature of the violation. The second relates to these specific violations and the exceptions available that relate to pet rules, generally.
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Community associations have two primary methods to enforce their covenants and rules.
First, you can fine the violating resident or suspend their rights to use the common elements. In order to do so, you need to follow the specific statutory procedure, which procedure requires the board to promulgate a fine (or suspension), and then to provide the person to be fined or suspended with fourteen days’ notice of the penalty and an opportunity to be heard by an independent committee, which committee has the right to either approve or reject the penalty (but not to change it—they can only say “yes” or “no”). You can fine or suspend a resident for violating your pet provision and failing to provide paperwork that is sufficient to support their request for an accommodation of your pet rules (which we will discuss in more detail below). That general process costs you nothing, though enforcing either penalty would require legal intervention (and the resulting expense).
Second, you can bring legal action against the violator and ask a court to issue an order that they abide by the governing documents (in this case, an order that they remove their illegal pets). Before bringing such an action you would need to either send them a mandatory pre-suit mediation demand, after which you would file a lawsuit in court; or instead send them a pre-arbitration demand and then file a petition for arbitration with the Division of Condominiums. I recommend the former, as the outcome of arbitration cases can be challenged in a “trial de novo”—essentially, a complete do-over in court. So, I prefer to simply mediate and then have the case resolved in court, anyway.
Now, let’s talk about pet rules, specifically. The reality of our current legal environment is that no-pet buildings no longer exist. The Fair Housing Act requires you to accommodate your rules for disabled persons, and this includes allowing them to have animals if those animals treat their disability. With that said, you are entitled to make a meaningful inquiry into the nature of the disability (if it’s not something visibly obvious), as well as the nexus between the disability and the need for the accommodation.
As you already know, it’s quite easy to simply go online and buy an emotional support animal certificate — but the government has said that such certificates are not sufficient proof to justify a need for an accommodation. You can reject these and insist on a letter from a person who can verify the disability and need for the animal (usually, the treating medical professional). It’s very likely that these two residents can get legally-sufficient letters — but it’s worth making them go through the motions to do so.
As for the owner who is ignoring your demands, your attorney has quoted you $20,000 for the litigation process. I don’t know if they are offering you a flat rate or if that’s just an estimate, but that’s cheap — most attorneys could not complete mediation and a full trial at that amount (unless perhaps the lawsuit was uncontested).
I will say though that I am not convinced that if you sued this resident and, after having failed to respond, they suddenly provided you with legally sufficient paperwork, your entitlement to fees would be completely off the table. You have a right to make the inquiry, and they have an obligation to provide you with the requested information; and if they refuse, you might have a claim to recover the legal fees you spent to force them to cooperate. This is something to discuss further with your lawyer.
But also, consider that you’re not really talking about a $20,000 expenditure here — you’re talking about spending a few thousand dollars mediating and then filing a lawsuit, and at some point before or after that process, the owner will relent. That’s an entirely different investment, and ultimately you are going to have to spend money to enforce your governing documents — there’s no completely free way to get that done.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.
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