Don’t be these guys. A condominium association in Queens, New York, engaged in a 3-year mission to evict a 3½-pound teacup Yorkshire terrier named Charlie. In the end, the condominium association racked up legal fees amounting to $4,200 per unit – or $100,000 of residents’ money in total, trying to evict the dog… and failed.
Condominium Association Board had circulated a set of rules to residents, including this: “Rule No. 1: Positively no pets are allowed in the building for any reason.”
The problem for the Middle Village condominium association board – aside from an obvious poorly thought out set of fiscal priorities – wasn’t that it was illegal to evict pets. Courts have routinely upheld the rights of condo and homeowner associations to restrict pet ownership unless the pet is a service or therapy dog of some kind.
In this case, none of that applied. Instead, an appeals court ruled that after spending six figures in legal fees, the board couldn’t even point to a section in its bylaws restricting pet ownership per se. The condominium association’s bylaws did not restrict pet ownership. They only said that owners and their pets and guests “shall not create a nuisance.”
“It is undisputed that the defendant transports the dog through the common areas of the condominium in a shoulder bag, and the Board has conceded that no one outside of the defendant’s apartment has heard the dog bark when he is inside the apartment,” ruled four-judge panel of the Appellate Division of the State Supreme Court.
The Board, then, failed to establish that Charlie was a nuisance to anyone.
But what about Rule No. 1? That wasn’t ambiguous at all, was it? No, it wasn’t. But it also wasn’t enforceable. Under the bylaws of the association, the Board cannot invent and enforce any new rules without the approval of 80 percent of the unit owners. That process never happened. The Board simply enacted the no pets rule by fiat, and overstepped its authority. The rule was unenforceable.
The appeals court therefore ruled that Charlie could stay.
Neither Cruella deVille nor the Wicked Witch of the West could be reached for comment.
The $100,000 was good money down the drain, of use only to incompetent lawyers who should have notified their client they didn’t have a case.
Here are the lessons learned for future boards: Before you move to evict a pet, you must ensure that the property owners have, in fact, delegated you the authority to do so. In this case, the courts actually upheld the authority of the owners when it wrote that the Board is not authorized to amend the bylaws at will. If you are enforcing a rule, make sure it’s one that has been duly approved by a quorum of owners at a pre-announced meeting as stipulated by your property association’s bylaws.
The Service Dog Issue
Contrary to what is normally assumed, the Americans With Disabilities Act (ADA), which requires businesses, venues and forums to make accommodations for disabled individuals generally does not apply to HOAs and condominium associations. These are regulated more like private clubs than public venues.
However, HOAs and condo associations still have to abide by both the federal Fair Housing Act, other federal laws regulating housing access, and state laws that generally stringently protect the rights of disabled individuals against discrimination in housing.
FHA vs. the ADA
Furthermore, while a recent administrative action by the Department of Justice has restricted the term “service animal” to include only dogs for the purpose of enforcing the ADA, and also specifically excludes dogs prescribed as ‘therapy animals’ from protection under the ADA, this does not apply to Fair Housing enforcement actions, according to a 2011 memo from the U.S. Department of Housing and Urban Development. So an HOA board cannot look at an owner who comes up with a letter from a rent-a-doctor claiming her precious little Rottweiler helps her with depression and anxiety without being trained to do anything specific and say, “Ah ha!!! Fluffy is not a service animal under the ADA! We’re going to evict your pet on that basis.
The restaurant down the street can refuse service on that basis. But not an HOA, which falls under Fair Housing rules rather than the ADA.
Rather, disabled individuals have a right to request a reasonable accommodation for service animals, to include emotional support animals, and to include species other than dogs, under Section 504 for the Rehabilitation Act of 1974.
So the fictional HOA here can challenge the dog claiming a Rottweiler is not “reasonable,” and may or may not have a case. But there is no basis for the Board to evict the dog under the argument that an emotional support animal doesn’t count as a service animal in this context.
Per the Department of Housing and Urban Development:
Under the FHAct and Section 504, individuals with a disability may be entitled to keep an assistance animal as a reasonable accommodation in housing facilities that otherwise impose restrictions or prohibitions on animals. In order to qualify for such an accommodation, the assistance animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling or to participate in the housing service or program. Further, there must be a relationship, or nexus, between the individual’s disability and the assistance the animal provides. If these requirements are met, a housing facility, program or service must permit the assistance animal as an accommodation, unless it can demonstrate that allowing the assistance animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the housing program or services.
Furthermore, this HUD memo goes even further to protect owners of service animals, and defines the term ‘service animal’ even more broadly, specifically including animals who are kept because they have a disability-related need for emotional support.
What do we do if a resident claims his prohibited pet is a service animal?
The Department of Housing and Urban Development require managers and boards to apply a two-pronged test to such requests:
Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to either 1 or 2 is “no,” then you can deny the request under federal law (though state laws may be more restrictive).
If the answer to both 1 and 2 is “yes,” then you must modify or allow an exception to your HOA’s pet policy.
You cannot impose breed, size or weight limitations on service animals. If you believe the animal to be a threat to others or that it may cause property damage, you must base your objection on behaviors specific to that particular animal, and not on others of his or her breed.
You also cannot make disabled individuals pay a special fee or fine in order to keep a service animal. You are not entitled to review detailed medical records in order to make the assessment, and you are not allowed to “unreasonably delay” a decision on a request for reasonable accommodation of a disability.
Neither the FHA nor the ADA requires service animal owners to have any registration or certification for their pets. There is no central clearing house that registers service animals, so you cannot demand such documentation.
As you can guess, the law heavily favors those with disabilities – or who claim to have disabilities – when it comes to attempts to evict pets. If a tenant or owner within your HOA claims a disability, it is very difficult for an HOA or condominium association to convince a court otherwise in order to evict the animal, owner or both.
As a number of HOAs and COAs and other housing agencies have found out to their chagrin, if the animal is not causing a problem, discretion is the better part of valor. It may well not be worthwhile to attempt to evict over a request for reasonable accommodation
|Author Bio Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.|