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Subject: FHA vs. HOA documents
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JoniL
(South Carolina)

Posts:47


06/08/2018 12:56 PM  
Hello just had conversation with ON about large dogs that are coming in to owners and tenants? Our documents state GO allowed to have dogs weighing up to 30 lbs. Renters not allowed dogs/pets.Now complaint was why are we allowing large dogs to renters and even owners. She quoted me Fair Housing Act and the animals were ESA? I believe we all know the difference between the Service dogs vs. ESA. These dogs do not wear vests as a real service dog does when in public. If this is case that the can over rule our documents / rules then what good are any of ours, or our HOA? Just looking for any advise on how to handle this invasion of ESA animals.Thanks Joni SC



JoniL
(South Carolina)

Posts:47


06/08/2018 1:18 PM  
Sorry typos on is PM which I had conversation with ON subject.
SheliaH
(Indiana)

Posts:2282


06/08/2018 1:24 PM  
The issue isn't so much renters vs. owners, but responsible/irresponsible pet ownership. There are small dogs who are miniature Napoleons in personality (especially chihuahuas) and big dogs who are very sweet. A lot of people are trying to get around community rules claiming their dogs are emotional support animals, but there are differences as to what applies as an emotional support animal vs. someone who got a vest off the internet (google it and all sorts of vendors will pop up) claiming the dog is an emotional support animal so they can take them everywhere, whether they should actually be there or not.

We've discussed therapy dogs, service animals and such on this website before, so you might want to start by looking up those conversations to get some ideas on how to address them. You might also look at the ADA website, which has all sorts of useful information on disability rights. Start with this link which discusses emotional support animals vs. service animals - https://adata.org/publication/service-animals-booklet. You may find the following verbiage from the website intriguing:

"While Emotional Support Animals or Comfort Animals are often used as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and therefore are not covered by federal laws protecting the use of service animals. Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning".

I've often recommended starting with gathering information - how many critters are we talking about and how many fall within the 30 pound limit vs. a giant dog? What sort of problems have come up (more noise from barking, dog poop everywhere, increase in bites, etc.) Have these people presented any documentation showing their emotional support animal is even trained to serve that function? there and perhaps talking to local disability advocates and animal control people, as well as your association attorney on rules that should be enacted and how they should be enforced. I think the rules should start with some definitions on what is considered a garden variety pet vs. a service animal, comfort dog, etc.

On top of that, add the usual rules you probably already have - dogs must be under the owner's control when outside, owners must clean up after their pets or be billed by the association, dogs should have all their shots, etc. Give everyone a copy of the rules with an effective date and then start enforcing them. No it's not as simple as it may sound and there will be pushback, so if you're on the board, may as well brace yourself.

By the way, in some of your posts, I get the feeling you really don't like renters. I've had some concerns about them also, because close to half the people who live in my townhouse community rent. My concern isn't that they rent, but too many HOMEOWNERS who rent to them don't bother to tell them the rules or ensure compliance. To avoid people claiming selective treatment and that stuff, you need to think of enforcing the rules against all residents, regardless of how they got there.

That said, you can and should hold owner/landlords responsible for the behavior of their tenants (a few hits in the wallet may compel them to pay more attention instead of treating the HOA as an el-cheapo property manager, but that should also be the case when you're dealing with an owner-occupant and his/her household, guests, etc.
JoniL
(South Carolina)

Posts:47


06/08/2018 1:27 PM  
Let's try this again Had conversation with property manager about the large dogs to owners and tenants that are in community. Tells me they are ESA and Fair Housing act covers them. Documents state owner allowed dog weighing no more than 30lbs. Tenants are not allowed pets. What kind of rebuttal if any can i make. Dogs are not wearing vests getting these documents from internet. If we have to allow this then our documents are not worth paper printed on. Has anyone else faced this invasion of animals? How did you handle it would?
JoniL
(South Carolina)

Posts:47


06/08/2018 1:44 PM  
Thank you for the response! I have researched the difference it's an informative read. What Property Manager is saying is can not do anything if they have papers (which we know are from internet). If legit service dog is welcome these others have no training.Not so down on renters. We have some very nice renters who obey rules and you wished they were owners. Yes you are right they do not receive rules or documents even when buying.That is one other thing needs to be addressed is making people aware before they rent or buy. Realtor so eager to sell does not disclose much. I have even seen advertising a condo saying tenants allowed pets. Oh not true. I was on phone calling the people listing property.PM is arguing can't do a thing about it because of Fair Housing Act protecting them.Thanks again
AugustinD


Posts:1126


06/08/2018 1:48 PM  
My HOA allows dogs but does take action when barking becomes a nuisance.

The Fair Housing Act covers both ESA dogs and dogs that are "service animals" as aids to those who have a disability.

The dog owner has to have documentation verifying the disability and the need for the dog. In the case of ESA's, this apparently has to be from a licensed mental health professional.

The net has a lot of sites that discuss documentation needed.

I think all you can do is ask your HOA or condo to require the correct documentation.
MelissaP1
(Alabama)

Posts:7664


06/08/2018 3:58 PM  
Your HOA can't have different rules for Renters versus owners. Renters are NOT members of the HOA. They also don't have a lease with the renter. The responsibility is on the owner to enforce the HOA's rules. The HOA can NOT enforce rules on renters. Just hold the owner responsible for violations of the renter.

So if the owner can own a dog, then they can decide if their renter can. That will be in their lease agreement with their tenant. It's always best for the owner to put in an extra paragraph that their renter obeys the HOA rules. Otherwise it can hold the owner the ability to evict the renter for violating any rules. If it's not in there, then it's not a condition of the lease. So Tenant's rights kick in.

Former HOA President
BenA2
(Texas)

Posts:531


06/08/2018 4:39 PM  
Neither emotional support animals nor service animals are required to have training or have anything, such as a vest, to identify them as service or support animals. Many animals have the vest but it is voluntary. Under the Fair Housing Act you can require documentation that the owner is disabled and the animal is necessary. There are exceptions for dogs that are disruptive, misbehaved, or if it causes an undue burden, but generally, you have to allow them.

I realize there is abuse in the system but a legitimate service or support animal should be viewed no differently than a wheelchair or crutches.

GenoS
(Florida)

Posts:2430


06/08/2018 6:23 PM  
Posted By MelissaP1 on 06/08/2018 3:58 PM
Your HOA can't have different rules for Renters versus owners.

Sure ut can. As long as the differences are spelled out in the covenants.
MelissaP1
(Alabama)

Posts:7664


06/08/2018 6:58 PM  
So how is that going to be enforced legally on a non-member?

Former HOA President
JoniL
(South Carolina)

Posts:47


06/09/2018 10:28 AM  
I beg to differ in the difference between Service and ESA animals. A service animal has been trained since a pup(speaking of dogs) to perform a certain task or tasks for individual. ESA dogs per day do not have this certain task to perform only comfort for a mental disorder. People pay tens of thousands of dollars for a Service dog. People with a small pet can go on internet to receive papers as did my neighbor so her dog could take someone's seat on the plane. I know that their some that are actually needed there is a lot of abuse cause they know Fair Housing will back them. Now you move in tenant should be aware of rule when signing lease willing knowing our HOA rules and documents.Later on I need ESA dog then there is the problem. Signing lease to the fact you are not allowed pets then decide you are breaking lease and PM can evict. Now if you come with legit papers which some say you can not ask for a reason why you require this animal there is the other rub.It all starts with who is selling and renting units needs to disclose before signing anything all rules and documents. I appreciate the discussion and all feedback. Still the question remains why does Fair Housing Act trump our HOA documents?
AugustinD


Posts:1126


06/09/2018 10:50 AM  
Posted By JoniL on 06/09/2018 10:28 AM
Still the question remains why does Fair Housing Act trump our HOA documents?


Because the courts recognize a hierarchy of laws. In this hierarchy, generally speaking, federal law trumps HOA governing documents. It is because of federal law that communities may no longer prohibit, for example, black families from moving in. All religious and race-based exclusions in a (way old) HOA's governing documents are null and void.

If you can stand it, I think it might be helpful to read about some of HUD's recent stances on the subject of ESA's. See for example this 2017 suit that HUD filed:
https://fairhousing.foxrothschild.com/2017/02/articles/disability/hud-files-new-emotional-support-animal-fair-housing-disability-discrimination-case/

This is HUD helping the disabled to be as integrated as possible into society, with the same options as anyone else. I know sometimes I grumble about these. But I can certainly see the point of someone who is disabled. I grant that fraud does occur, and one should tactfully question any such appearance.
BenA2
(Texas)

Posts:531


06/09/2018 1:55 PM  
Posted By MelissaP1 on 06/08/2018 6:58 PM
So how is that going to be enforced legally on a non-member?



You enforce it on the owner of the property. If there is a violation of the covenants, it is the owner's responsibility.
MelissaP1
(Alabama)

Posts:7664


06/09/2018 5:10 PM  
Exactly Ben. You can't enforce the violation onto the Renter. The owner has to do it. So why would the HOA even reference a renter/tenant in their documents? Those people are not members and enforcement is the responsibility of the owner/member.

Former HOA President
GwenG
(Florida)

Posts:592


06/09/2018 6:49 PM  
I believe we all know the difference between the Service dogs vs. ESA. These dogs do not wear vests as a real service dog does when in public.


I beg to differ. Most people do NOT appreciate the differences between the two and the differing requirements of FHA and ADA. A vest is meaningless.

Point of clarification: Service Dogs do NOT have to be trained at great cost from puppyhood; they can be trained at any time by the owner or any individual.

In my experience with private rental properties, I encountered a man who was quite obviously hard of hearing and who trained his own service dog (a forbidden breed) to react to certain conditions in the home environment, such as a knock on the door or nighttime disturbances. This did not require costly training; the disabled person trained his own dog to perform supportive behaviors.

So what documentation could I ask for?

My Answer: None. The HUD says that you cannot ask an applicant for proof of a disability if such disability is obvious and apparent. This would be the case with a blind person using a cane to walk or a hard of hearing person who wears hearing aids. The HOH rental applicant portrayed obvious signs of disability and I did not question the nature of the disability or ask for documentation. His declaration, along with his presentation, fulfilled the requirement of evidence of disability, need for a service animal and a housing accommodation despite the breed and weight problems. I could not ask for a pet deposit; service animals are not pets. Functionally, they are considered "medical equipment".

ESA present a different problem because the nature of the disability is not typically obvious. However, covert emotional needs are no less compelling than physical needs. The task of an ESA is different but equally important. It is actually easier to qualify a legitimate ESA applicant because you CAN ask for documentation and require that the documentation be verifiable, with reasonable standards. For those with true need, the request for supporting documentation is expected and readily offered when asked for. When candidates with casual self-proclaimed emotional needs are advised that the documentation will be vetted, the tenant-applicant usually goes away or otherwise removes themselves from the application verification process.

For casual HOA landlords, it is a challenge just to find a tenant who will pay the rent. HOA landlords do not typically manage tenants professionally. HOA's have no business messing with an Owner-Tenant contract and, as Melissa states, it is entirely up to the Owner to be "disciplined" by the HOA for housing a problem occupant on HOA property. Seasoned owner-landlords know that it is expensive and risky to evict tenants for annoying behaviors and may consider their interests and obligations superior to the HOA's concerns. If HOA's want to write separate rules for renters, it better be in the Covenants and be specific.

Regardless of the perceived or actual nuisance of living with animals in our world in any capacity, HOA's would be unwise to engage in an adversarial position with HUD on this hot issue (or any other housing discrimination matters) or to violate contractual private property rights.
JoniL
(South Carolina)

Posts:47


06/10/2018 4:56 PM  
Thank you I believe I am understanding a little better still does not make an easy task. I just found out today BOD plans on changing our rules with weight limit on dogs to owners.Tenants are not allowed to pets. To either weight limit will change or we become pet friendly. Tried to explain I do not believe they can without the 51 percent vote which they can not get for annual meeting. BOD will change anyway without it. They have cut rules up that we hardly have any left. I encountered the lady said service animal at our pool today.I informed her she could not bring her unleashed dog into poll area. She quoted service animal. Dhec sign no animals and or pets. Found out her animal jumped down attack owner animals that were on leash. Just where does it end? After all discussion I don't see where we go with this situation? Thanks
JoniL
(South Carolina)

Posts:47


06/10/2018 5:01 PM  
Second part of lady with unleashed service animal at pool was she did not even live here.
GenoS
(Florida)

Posts:2430


06/10/2018 5:22 PM  
Service animal is not a pet, that is true. But absolutely must obey leashing regulations.
GwenG
(Florida)

Posts:592


06/10/2018 7:44 PM  
Geno is 100% correct; local leash, health, tag and vaccination laws apply to everyone including service animals and ESA's.

Your HOA can make the rules it wants, but Owners' tenants will still have a FEDERAL right to have access to housing and Owner must accommodate. (HOA's are subject to additional legal responsibilites and operation of law apart from its own internal governing documents.) That means that the weight and breed rules must be relaxed to accommodate a disabled tenant. Physically and emotionally disabled persons and their service animals are "protected" by HUD. HUD defines community associations and owners as housing providers. Service animals and ESA's are not pets. HOA's that do not grasp this reality potentially expose their members to liability.

If pool lady was a guest of a tenant who was lawfully given pool privilege by her Landlord (Owner), she has the right to be in the pool area with a service animal. She still must obey HOA rules, the local health/leash laws and pick up any deposits that the animal makes. She must obey local licensing and vaccination ordinances. She cannot allow her service animal to create a nuisance to others.

It is inconvenient and frustrating for 3rd party host common properties to "let go" of controls, but they must obey the larger society when their rules conflict with the rights of access to housing for the disabled.

For the owner/tenant part, they must obey laws and rules apart from those limiting access to public and common areas. Their privileged accommodation right is for access to housing and appurtenant elements. HUD does not give disabled persons freedom to ignore Owner/HOA rules. The pool lady who did not live there has a sponsor. If sponsor is a Tenant, the Owner needs to be consulted about its Tenant's guests. The HOA, if it does not have provisions in the covenants providing for tenant/owner rental restrictions, will have no choice but to attempt to get voluntary compliance from the Owner.

HOA's (and Owners) would be wise to err on the side of accommodating and not gamble on their rules protecting them from housing complaints. HOA's would be wise to remember that it costs NOTHING for a protected class person to file a complaint. HUD will do all the work investigating the complaint.



BenA2
(Texas)

Posts:531


06/10/2018 8:03 PM  
If the dog attacks other animals or people you can probably ban it. If a service or support animal is not disruptive or causing harm, the rules for pets and other animals don't generally apply.
BenA2
(Texas)

Posts:531


06/10/2018 8:09 PM  
This is not exactly true. There are exceptions. They can have a harness or no restraint at all (other than verbal) if it interferes with the service they perform.
BenA2
(Texas)

Posts:531


06/10/2018 8:10 PM  
Posted By GenoS on 06/10/2018 5:22 PM
Service animal is not a pet, that is true. But absolutely must obey leashing regulations.



This is not exactly true. There are exceptions. They can have a harness or no restraint at all (other than verbal) if it interferes with the service they perform.
GenoS
(Florida)

Posts:2430


06/10/2018 9:01 PM  
Posted By BenA2 on 06/10/2018 8:10 PM
This is not exactly true. There are exceptions. They can have a harness or no restraint at all (other than verbal) if it interferes with the service they perform.

Perhaps, but a service animal is not allowed to behave so as to constitute a nuisance. A service dog running around off-leash in the pool area, maybe jumping in the pool, bothering other bathers, peeing or pooping without cleanup, barking, etc. Those types of behavior are still not allowed. Granted, most legit service animals are well trained and won't do those things, but ESAs are often not trained all that well. It depends on whether or not the behavior constitutes a nuisance.
GwenG
(Florida)

Posts:592


06/11/2018 7:45 AM  
Clearly, FHA/HUD does not have a requirement that service animals/ESA's wear any identifying information, ID Tags, vests, harnasses etc.

Leash laws are commonplace in our society. Service animals are not exempt from leash laws. Observers cannot know for certain the behavioral inclinations, history, changing temperment or repertoire of a service animal, just because it may have been trained to perform a special skill for its disabled owner.

If you park your car in a private parking lot in a designated space for disabled persons, you can be cited and fined. If your dog is off leash in a municipality that has a leash law and your pet/service animal is not on a leash, you can also be cited. Of course, both situations will usually be complaint-driven. There is no free lunch for these specially trained (or not) animals, nor is it society's obligation to sort out the presumably trained service animals from untrained ESA's and presume a threat or not. ALL must be leashed outside of the owner living unit!

Once the housing provider has made the reasonable accommodation and allowed access, the law has been fulfilled. At that point, the animal is subject to all other laws, rules and regulations demanded by the housing provider as long as they are not so onerous as to negate reasonable access to housing.

I learned some of these things when I was asked to defend a housing provider against a HUD complaint involving an ESA. The response to the complaint took about 8 hours of administrative time and research, the investigative questions consumed 2 single-spaced pages and the entire response package took 39 pages of response and supporting documentation.

Six months later, the complaint remains open because the complainant has "issues" and is permitted to pursue the complaint to ridiculous lengths with HUD. HUD is currently contacting other uninvolved tenants as "possible witnesses". (The original HUD complaint had required a complete listing, with work and personal phone numbers, for ALL tenants in ALL housing owned and/or managed by the housing provider!)

Hear me now and believe me later: HUD is not your friend if you are a housing provider. And, it has recently placed additional duties on community associations regarding hostile environment harassment and bullying: https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-liability-for-discriminatory-housing-practices

And, even if the eventual outcome of a complaint is favorable, the housing provider is now "on the radar" with HUD.
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