Our team previously wrote about pet restrictions in a 2014 article located here. Nearly six years later, pet restrictions continue to be a breeding ground for confusion, particularly with respect to fair housing and discrimination laws and as those laws relate to recent legislation which took effect in July 2020.
According to statistics provided by The Humane Society of the United States, approximately 67% of all households throughout the United States had a pet based on data collected from 2019-2020. While pets have become a mainstay in most American households, they are not necessarily as common in condominium and homeowners association. The governing documents of many community associations impose limits on the types and number of pets a member or tenant may keep in a unit or home.
These pet restrictions take varying forms; sometimes, the goal is to curtail what are deemed to be aggressive or dangerous breeds as defined by the governing documents. In other instances, a restriction may limit the number of pets a single owner may keep, or may define what types of animals are deemed domesticated and permitted to be kept as a pet at all.
Proceed with caution
The method and manner in which a pet restriction is adopted and enforced should be carefully reviewed with legal counsel; failure to correctly notice and adopt such policies may jeopardize the enforceability of the provision itself, as does the inconsistent enforcement of the restriction. It is also important to carefully draft such policies while ensuring that the restriction is not unreasonable, arbitrary, or capricious. Start by considering what the restrictions intended effect is, and what problem the Board seeks to solve by enacting the restriction. For example, does the Association wish to restrict pet ownership among all members, or only as to tenants? Drafting with the least restrictive, but still effective, language can help in showing that the restriction is reasonable.
Impact of fair housing and discrimination laws
Even after carefully drafting and passing such restrictions, community associations must consider how other laws, such as fair housing and discrimination laws, affect the application of pet restrictions. Requests for a reasonable accommodation to pet restrictions made pursuant to the Fair Housing Act and Americans with Disabilities must be handled with diligence to ensure their protections are afforded. The purpose of these laws is to permit persons with disabilities the equal opportunity to enjoy housing; however, these protections can unfortunately be exploited by persons making fraudulent claims, particularly as they relate to emotional support animals (“ESAs”).
Fraudulent claims are exacerbated by online healthcare providers who liberally issue letters without verifying a patient’s legitimate need for an ESA. Last year, the Florida legislature recognized this threat and responded by enacting Sec. 760.27, Fla. Stat. (2020) and amending other sections of Florida’s fair housing laws. The new legislation took effect in July 2020 and made the following changes:
- Authorizing a housing provider to request specified information under certain circumstances and with certain restrictions;
- Specifying that the owner of an ESA is liable for any damage done to the premises caused by their ESA;
- Prohibiting a health care provider from providing information regarding a person’s need for an ESA without having personal knowledge of that person’s need for the animal ;
- Prohibiting the falsification of information or other fraudulent misrepresentation regarding the use of an ESA; and
- Providing penalties for persons who provide false proof of the need for an ESA, which is punishable as a second degree misdemeanor.
It is important to note that these changes to the Florida fair housing laws are distinct from the obligations and limits imposed by federal laws, which may also apply to a community association.
An Association’s Board of Directors should carefully review the Association’s rulemaking authority with legal counsel to ensure the manner such a restriction is implemented correctly. Counsel should also be consulted in drafting the content of any such restriction. Clear drafting can help the Board of Directors and members alike, and can save the Association time, money, and headaches in the long run.
Finally, if the association receives a request for a reasonable accommodation or modification based on the need for an emotional support animal or service animal, the association would be well-advised to consult with counsel to ensure compliance with both federal and state laws.
Should your Association need assistance in this regard, please contact any member of our Condominium and Homeowners Association Group to schedule a consultation. I may be reached at email@example.com or by phone at 239-344-1184.