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March 2018

Emotional Support Animals Leave Many Condo Associations Howling

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Over the last five years, one of the most significant areas of concern for Florida condominium associations, especially those with no-pet policies, has been the rise in requests by occupants for associations to provide “reasonable accommodations” in their rules and regulations by permitting an emotional support animal (ESA). Given the potential for legal repercussions in the event that a legitimate request is denied, associations and their boards of directors and property managers should seek expert guidance on how to address these requests.

The laws governing emotional support animals emanate from the Fair Housing Amendments Act of 1988, and its state and local counterparts. The act prohibits discrimination in the provision of housing to disabled persons, and it requires that a reasonable accommodation in an association’s rules and regulations be provided to a disabled person so that they can use and enjoy the property to the same extent as a nondisabled person.

Disabilities can take many forms: some physical and others emotional and/or psychological.  For emotional and/or psychological disabilities such as depression, there are rarely obvious, external symptoms.

The process for condominiums typically begins with a written request by an owner or resident notifying the association of their disability and asking for it to grant an accommodation for an emotional support animal. Such a request may or may not be accompanied by a letter from a treating physician or therapist. Since being disabled, as that term is defined in the law, is a necessary prerequisite to exercising one’s right to be granted a reasonable accommodation, the individual who is making the request will need to demonstrate a disability. The act defines a disability as a condition that impairs or substantially limits a major life activity, e.g., walking, working, attending school, exercising, etc.

It is imperative for associations and their directors to understand that simply because the disability is not readily apparent, but rather emotional or psychological in nature, does not mean that the request is illegitimate or deniable out of hand. For example, if the individual is being treated for depression, especially if they are receiving psychiatric therapy as well as perhaps also medication, it will be difficult to deny a doctor’s claim that the animal provides the emotional support that the requestor requires to perform even the most basic major life activities.

The owner/resident must be able to demonstrate to the association that the disorder qualifies as a disability under the act and the emotional support animal alleviates it. The accommodation must be deemed necessary to provide the disabled owner/resident with an equal opportunity to use and enjoy the residence, so they must demonstrate that the emotional support animal mitigates their symptoms.

Once a request for reasonable accommodation is made, an association must approve or disapprove the requested accommodation within a reasonable time period. Unlike with obvious physical disabilities, associations may request information regarding the nature of the psychological/emotional disability so that they can make a meaningful evaluation as to whether the request for accommodation is reasonable. They are entitled to inquire about how the disability affects major life activities and how maintaining the animal will assist the requestor in fulfilling these activities.

Once all of the requested information is received and reviewed by an association, it should render a decision and issue it in writing to the unit owner/resident. If the request is denied, the requesting member may then file a complaint with the U.S. Department of Housing and Urban Development or the Florida Commission on Human Relations, which would then investigate the complaint to determine whether or not discriminatory conduct has occurred.

The association will then be required to respond to the complaint and explain its position and reasoning behind the denial. If the investigating agency concludes that discrimination has occurred, the effected party would then be able to file suit against the association. Liability for such discriminatory conduct may be found against associations, managers and, in some cases, board members in their individual capacity.

While there are many legitimate psychological and emotional disabilities that benefit from the use of emotional support animals, it is also widely known that the rules governing ESAs are frequently abused in order to circumvent legitimate association pet restrictions, as well as travel restrictions for animals. In fact, a cursory search of “emotional support dog” on Google produced more than five million results and provided links to multitudes of kits with “emotional support dog certifications” for sale.

Given the growing popularity of requests for emotional support dogs and other animals for both legitimate and illegitimate purposes, community associations with pet restrictions should work closely with highly experienced legal counsel in order to avoid potential legal pitfalls stemming from denials of these requests.

By Michael E. Chapnick | UPDATEDFeb 22, 2018 at 10:03 AM

 

Thirteen Things You Need to Know About Florida Condominium Association Emergency Powers

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In Florida, condominium living is a way of life.  Many of the state’s condominiums are located in places where they can capture a view and typically that means they are close to the water.  In Florida, we also have hurricanes.  Hurricanes have largely shaped Florida’s construction industry in that the building code is shaped and modeled after the construction of structures that can withstand hurricane winds.  Sometimes, however the storm surge and winds can over-take these structures and can lead to a catastrophe to not only buildings but entire regions of the state of Florida.   When this happens, condominium associations are required to act and act quickly.

As a result, Chapter 718 provides for certain emergency powers for Florida Condominium associations.   The association’s emergency powers are located in Section 718.1265 of the Florida Condominium Act.  Sometimes additional association emergency powers are also listed in an association’s declaration so you may want to check those as well so it is important to have a full understanding of the condominium governing documents.

The board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a)     Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.

(b)    Cancel and reschedule any association meeting.

(c)     Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.

(d)    Relocate the association’s principal office or designate alternative principal offices.

(e)     Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f)     Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g)    Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h)    Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i)     Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability under to the declaration.

(j)     Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k)    Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.

(l)     Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m)   Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

The powers authorized under the emergency powers section of the Florida Condominium Act are limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees.  The special emergency powers shall be reasonably necessary to mitigate further damage and make emergency repairs.  Any understanding of these powers is critical to the safety of the community.

by Christopher M. Cobb, Esq.

2018 Florida Legislative Session Update – Community Association Related Bills

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Florida’s 2018 Legislative Session is in full swing. Following a fairly busy Florida Legislative Session in 2017, there are again a number of proposed bills relating to community associations currently being considered in Tallahassee.   As is our yearly ritual, we are keeping a close eye on proposed legislation relating to community associations. If passed and signed into law, these bills would have a significant impact on community operations throughout the state.

To be clear, this list is not all-inclusive, and the bills will certainly change in number and substance before the end of the regular session scheduled for March 9, 2018.  However, below is a snapshot summary of the currently pending legislation which impacts Florida condominiums and homeowner associations:

HB 377  : Homeowners’ Associations

  • Increases minimum statutory damages for willfully failing to provide official records from $50 per day (up to 10 days) to $500 per day (up to 30 days) – a potential total of $15,000!
  • If a community manager or management firm is delegated with the responsibility of providing access to records, a member has a claim against the manager or management firm for the damages. Specifies that managers and management firms cannot be indemnified or otherwise reimbursed by the association for these damages.
  • Obligates HOAs to resubmit reports to the Division if there is a material change to the information previously provided under 720.303(13).  It is not clear what would be considered “material,” but presumably it would apply to the number of parcels governed by the community, and the amount of total revenues and expenses from the association’s annual budget.
  • Removes the ability for HOAs to file a lien against a parcel for fines exceeding $1,000.
  • Changes the requirements which trigger an obligation for a developer to turn over control of an HOA to non-developer members.
  • Provides that election and recall disputes are eligible for pre-suit mediation.  However, this appears to be in addition to the mandatory non-binding arbitration which is currently required by statute.
  • Provides that the Department of Business and Professional Regulation (DBPR) shall provide binding arbitration at the request of a parcel owner or HOA for disputes involving rules enforcement, maintenance, assessments, and official records.
  • Provides that the DBPR shall provide training and educational programs for HOA members, directors, and officers.
  • Provides that the DBPR has enforcement authority over HOAs for records access, financial management, and election infractions. In addition, the DBPR may also investigate any complaint made against an HOA to the DBPR.
  • Requires sellers of property subject to HOAs to provide a copy of the governing documents (including all amendments) and current operating budget of association to buyer at least 7 days prior to closing. Buyers may cancel sale within 3 days of receipt of documents.
  • Creates limited causes of action against developers, and prohibits developers from using association funds for non-association purposes prior to turnover.

HB 841/ SB 1274: Community Associations

  • Specifies that certain documents must be permanently maintained in the official records of condominium associations from the inception of the association
  • Refines the list of documents required to be posted on condominium association websites, and limits the association’s liability for inadvertent disclosures of protected information
  • Provides additional methods and requirements for electronic notice of meetings
  • Provides a limit on consecutive years served by Board members
  • Further revises condominium recall procedures based upon the facial invalidity of written agreements or ballots used to recall directors
  • Clarifies the disclosure and approval requirements for conflicts of interest
  • Revises fining and enforcement procedures
  • Adds new budget and reserve requirements for homeowners’ associations
  • Clarifies that material alterations and substantial additions must be approved before they are made
  • Provides for the automatic removal of directors and officers that are more than 90 days delinquent to homeowner associations
  • Prohibits nominations from the floor of homeowner association elections in certain circumstances
  • Makes the laws applicable to bulk buyers permanent

HB 873/SB 1238: Homeowners’ Associations

  • Incorporates many of the legislative changes that applied only to condominiums in 2017, and applies the same to homeowner associations
  • Requires homeowner associations with 150 or more parcels to have a website, with certain official records and notices posted
  • Prohibits associations from hiring an attorney who represents the management company of the association
  • Requires copies of financial reports to be provided to owners, or within 5 business days of an owner request
  • Prohibits the use of debit cards for association expenses
  • Revises recall procedures
  • Creates new criminal penalties for officers, directors, or managers for soliciting or accepting “kickbacks,” as well as other violations
  • Revises fining and enforcement procedures
  • Provides additional conflict of interest provisions
  • Imposes board member term limits

HB 1061: Community Association Fire and Life Safety Systems

  • Requires high-rise buildings without fire sprinkler systems to be marked with a warning sign or symbol approved by the State Fire Marshal  
  • Allows high-rise buildings to opt out of Engineered Life Safety Systems (ELSS)
  • Extends opt-out deadlines for Fire Sprinkler and ELSS retrofitting until December 31, 2018, and extends actual retrofitting deadlines.

SB 266: Covenants and Restrictions

  • Revises the Marketable Record Title Act (MRTA) to streamline preserving and revitalizing covenants and restrictions
  • Permits non-residential property owners’ associations to preserve covenants and restrictions
  • Allows non-mandatory homeowners’ associations to revitalize covenants and restrictions that have expired

HB 625: Community Associations

  • Requires the DBPR to establish an Office of Community Association Hearings to employ community association hearing officers in lieu of arbitrators for certain disputes, with the authority to impose certain sanctions.
  • Allows DBPR to certify attorneys who are not employed by the DBPR to act as community association hearing officers under certain conditions
  • Revises the provisions related to alternative dispute resolution for condominium and homeowners associations.

HB 123/SB 1366: Bullying and Harassment in Community Associations

  • Creates the “Stand Up for Seniors Act” for communities intended and operated for occupancy by persons 55 years of age and older
  • Prohibits and provides definitions for bullying, cyberbullying, and harassment
  • Requires associations to adopt policies prohibiting bullying and harassment, with specific statutory requirements including association investigation and enforcement requirements
  • Requires policies to be reviewed every three years

SB 1400: Vacation Rentals

  • Creates the “Florida Vacation Rental Act”
  • Preempts all regulation of vacation rentals to the state and nullifies any local regulations
  • Requires vacation rentals to obtain a license
  • Specifies that vacation rentals are to be treated as transient rentals regarding certain landlord and tenant provisions
  • Grandfathers certain local laws, ordinances, and regulations, etc.

If these bills make their way through the legislative process and become law, they will significantly change the relationship between community associations and their members, and how community associations operate.  We will continue to monitor their progress as the 2018 Florida Legislative Session progresses.

by Editor | February 15, 2018 9:07 am

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