HUD Issues New Guidance on Emotional Support Animals in Condominiums and HOAS

By: Erin Glover-Frey, Esq.

            On January 28, 2020, the US Department of Housing and Urban Development (“HUD”) issued new guidance on when a housing provider must provide a reasonable accommodation of “assistance animals” for disabled residents under the Fair Housing Act. “Assistance animals” includes both service dogs – i.e. dogs individually trained to perform work for the disabled resident – and the more contentious “emotional support animals” that provide assistance to the disabled person just by virtue of being an animal. Condominiums and Homeowners Associations are housing providers subject to the Fair Housing Act and must provide disabled residents with reasonable accommodations of their disabilities upon legitimate request, even if the accommodation would be in violation of the association’s governing documents.

The new HUD guidance clarifies the types of animals for which housing providers are required to provide an accommodation, and specifically excludes reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals, unless unique circumstances exist.

            HUD also clarified that assistance animal documentation from the internet “is not, by itself, sufficient to reliably establish that a person has a non-observable disability or disability-related need for an assistance animal.” In other words, a housing provider does not have to provide an accommodation based on an internet registration alone, however a medical or mental health provider may still assess the disabled resident via the internet.

To simplify the process for reviewing a request for a reasonable accommodation, HUD provided a step-by-step inquiry for housing providers as follows:

  1. Does the person have an observable disability or does the housing provider already have information giving them reason to believe that the person has a disability?

Yes à Skip to Question 3

No à Go to Question 2

  • Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?

Yes à Go to Question 3

No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.

  • Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to the individual’s disability?

Yes à Go to Question 4

No à Give the requester reasonable opportunity to provide this information. If the requester cannot provide the information, then the housing provider may deny the accommodation request.

  • Is the animal commonly kept in households (dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other, small domesticated animal)?

Yes à The housing provider should provide an accommodation, unless doing so would constitute a direct threat to the health or safety of other individuals that cannot be eliminated or reduced to an acceptable level through actions of the owner.

No à The housing provider does not need to provide an accommodation, except under very rare and unique circumstances.

            These questions, though helpful, still leave wiggle room for loopholes and fraudulent requests for accommodation. If you are a housing provider and are presented with a request for an accommodation, to avoid costly litigation in the future, the best practice is to consult with an experienced and knowledgeable attorney before making any decision.

What is a limited proxy

Q&A:Question:What is a limited proxy

Answer: A limited proxy is a proxy that directs the proxy holder to vote on those specific issues and lists the issues that a proxy holder may cast a vote on behalf of an owner. In the condominium and cooperative context limited proxies must be used for any substantive votes by the owners, such as votes to waive or reduce reserves, votes to waive financial reporting requirements, votes to amend the declaration, articles of incorporation or bylaws, and for other matters for which a vote of the owners is required. However, this is not required for HOA’s.

Rules and Regulations created by Association Board of Directors:

Prior to adopting a Rule and Regulation, the board must have the authority to do so. Boards should most special attention when establishing and adopting rules and regulations concerning unit or property use. All rules must be reasonable and tie in some manner to the safety, health and welfare of all community members.

Boards should NOT enforce the rules in an arbitrary manner.

Generally, rules made by an Association are subject to a three (3) pronged test for enforceability, to wit:
        1.      The Board of Directors must have authority to promulgate the rule (authority granted by the Declaration of Condominium or other governing documents);
        2.      The rule cannot conflict with any of the rights conferred by any of the documents of higher priority, whether those rights are expressly stated or reasonably inferable; and
        3.      The rule must be reasonable (explained as rationally related to a legitimate objective of the Association).

Medical Marijuana Use by Owner or Tenant

Florida is one of the many states that legalized the use of medical marijuana and therefore it is a safe bet that at some point an owner or tenant will request the ability to smoke or the substance as a reasonable accommodation for a disability.

On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance and therefore the manufacture, distribution or possession of marijuana remains a federal crime.

HUD emphasized in that Memorandum that a public housing agency or owner of federally assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Therefore, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

1. Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
2. Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
3. Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
4. Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
5. Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?

Things to consider before purchasing a condo

Condominiums are a significant segment of the housing market in Florida. However, many prospective condominium purchasers are unaware of condominium concepts or the provisions of Chapter 718, Florida Statutes, the Condominium Act. Below is some important information that should be considered prior to making a purchase.PART ONE: THINGS TO CONSIDER BEFORE PURCHASING A UNIT

  1. What will be your ownership and voting rights in the association?
  2. What will be your percentage share of the common expenses?
  3. Are any special assessment coming up in the near future.
  4. When was the last insurance appraisal or valuation and does the condo have sufficient insurance coverage for the building.
  5. Review the budge.
  6. Determine if the reserves are properly funded.
  7. What are the restrictions on the use of the common elements and the unit?
  8. Are there any leases or contracts associated with the condominium association? If so, what are their terms?
  9. Do you understand all of the provisions of the documents?
  10. Exactly what items will you be personally responsible for maintaining?
  11. Is the condominium development completed? If not, how many units will eventually be added to the condominium development and what impact will they have on the use of the recreational amenities?
  12. What is the proposed schedule for adding units or amenities to the condominium?
  13. Does the developer have the option of not completing certain facilities or amenities?
  14. Does the association have a history of complaints by residents of the condominium?
  15. Is the association currently involved in litigation?
  16. Does the association carry adequate insurance?
  17. Is the condominium property well maintained?
  18. Has the association established reserve funds for future capital expenditures and deferred maintenance projects?
  19. Is the condominium being created a conversion, converting a previously occupied residential structure, what is the condition of the property and will major repairs be required in the near future?
  20. What is the history and reputation of the developer?
  21. Who is sitting on the board of directors
  22. What is the association’s pet policy?
  23. Are there any restrictions on the selling or renting units?
  24. Are there any restrictions on the number of family members or guests who may occupy a

In closing, Gather documentation and review any HOA rules.

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice or a legal opinion on specific facts or circumstances nor a solicitation of legal business. You are urged to consult an experienced lawyer concerning your particular actual situation and any specific legal questions you may have. No attorney-client relationship attaches as a result of any exchange of information.