By: Kristie Leff
With the growing popularity of emotional support animals, condominium associations are increasing forced to confront the issue of whether or not to permit emotional support animals to reside in units at associations that do not allow pets. Emotional support animals differ from service animals in that service animals are specially trained animals that assist people for a specific purpose, such as guiding a blind person or alerting to an epileptic seizure. Emotional support animals, on the other hand, are not specially trained, but merely provide comfort to a person.
Pursuant to the Federal Fair Housing Amendments Act (1988) and corresponding case law, service animals must be allowed to reside in units as a reasonable accommodation for disabled people with documented needs, even if the association has a no pets rule, as long as the accommodation does not constitute an undue financial or administrative burden for the association, or fundamentally alter the nature of the housing.
However, what if the animal is an “emotional support animal” that is not specially trained and merely provides a person with comfort -- is that animal allowed to reside in a unit that does not otherwise allow pets? The answer is ‘yes’; under fair housing laws emotional support animals are treated the same as service animals in housing situations. This means that if the resident provides documentation from a healthcare provider stating they have an emotional or mental condition that would benefit significantly from having an emotional support animal, the association must allow the animal to reside in the unit, despite a prohibition on pets, as long as the accommodation does not constitute an undue financial or administrative burden for the association, or fundamentally alter the nature of the housing.
Even though this may seem fairly straightforward, there are still may questions and issues that associations have. First and foremost, associations may question whether the request to keep an emotional support animal is legitimate, or just an excuse to keep a pet in contravention of the no pet rule. We have all heard the stories about websites that provide fake certificates for a fee that claim to certify a pet as an emotional support animal. In order to avoid being scammed, an association should not accept such certificates as proof of the need for an emotional support animal. The letter must be from a healthcare provider who is actually treating the person. Also, associations may question the whole concept of “emotional support animals” and whether there is scientific evidence that an untrained animal has any significant therapeutic benefit. For the time being, even though the medical efficacy of emotional support animals may be inconclusive, as long as fair housing laws recognize emotional support animals as legitimate if the proper documentation is provided, associations will need to abide by the law or face penalties.
Speaking of penalties, the penalties for violations of fair housing laws can be severe. The penalties can include monetary damages, punitive damages, and attorney’s fees. In addition, the Connecticut Commission on Human Rights and Opportunities (the state agency that enforces fair housing laws) may require training sessions for board members who violate fair housing laws.
Once a resident has provided the necessary documentation for the emotional support animal, the association may feel like it is hostage to the rights of the resident and the proclivities of the animal. However, this is not the case. The association still has the ability to enforce its rules related to nuisance and activities on the common elements. For example, if the animal is constantly barking, defecating on or damaging common elements, or attacking other residents, the association is completely within its rights to enforce any rules it may have related to these activities.
If your association is confronted with a request by a resident to keep an emotional support animal in a unit, the board will want to take steps to both properly scrutinize the medical documentation provided, and avoid a wrongful denial that may subject the association to penalties. If your association has questions about what steps to take, seeking legal advice is recommended.
The Finer Points of Fining a Unit Owner- Part 2 of 2: The Hearing, this is not Law and Order or Judge Judy
By: Andrea Dunn
The hearing date is set. Felix has been notified and the Board has done everything right. What’s next? The hearing. Many board members are not fond of the hearing. It is unknown what is going to be said, what evidence is going to be presented and, quite frankly, the idea of sitting in a small room with people yelling at you is not appealing. I’m here to help.
The hearing can be held at either the beginning or end of a regular board meeting or can be done separately at an executive session. The executive session allows the hearing to be with just the board, Felix and his witnesses and the association’s attorney. If the hearing is being held at a regular board meeting, the agenda of the meeting sent to the unit owners needs to list the hearing. A quorum of board members needs to be present at the hearing.
The hearing commences. It is best for the board to start the meeting and go over the basics: why Felix is here, how Felix got notice of the meeting and how the hearing is going to proceed. THIS IS NOT A DEBATE, NOR IS IT JUDGE JUDY.
The board is there to listen to Felix and hear testimony of any witnesses and review any evidence presented. If the board wishes to ask Felix questions after evidence is presented, they may do so. I recommend keeping questions to a minimum so that the hearing does not get prolonged or veer out of control. Do not allow Felix to go on and on. He needs to address the specific violation and not his personal opinions about Oscar.
After Felix has completed his testimony and presented his witnesses and evidence, the board should thank him for coming and tell him he is free to go. Tell Felix the board is going to discuss the matter and will issue him a decision in writing within 30 days. The board should then, if they are conducting the meeting at a regular board meeting, go into executive session to discuss the matter. Unit owners are not to be present in executive session and minutes are not kept during executive session. The board discusses the matter and decides to issue a fine of $50.00 for blocking Oscar’s parking spot on June 8th. The board also decides that any further documented instances of Felix blocking Oscar’s parking spot will result in a fine of $50.00 per occurrence. The board concludes executive session and goes on the record with the decision and the secretary records the decision. The property manager or attorney then sends Felix a decision letter reiterating the basics: what rule was violated, what notices were sent, the date of hearing and the fact that he attended. The decision letter will inform him that the board found him in violation of the rule and that a fine of $50.00 was issued and any further documented occurrences will result in additional $50.00 fine per occurrence. Felix will also be informed that should any further action need to be taken, he may be liable for costs and attorneys fees.
If Felix decided to not attend the hearing, the board still makes a decision and sends a decision letter. Felix’s attendance does not effect the board’s ability to issue a fine and he was informed of this in the hearing notice letter.
By: Andrea Dunn
The Association has the power to fine a unit owner for violating the rules. So, it’s okay to send a note telling them and adding the fine to their account? NO. NO. NO. To quote a phrase from the movie, Mr. Mom, “You’re doing it Wrong”. Doing it wrong can cause a great deal of strife for a Board of Directors, and can cost the Association lots of money. So, let’s go over the procedure that must be followed to issue a fine properly, according to the Common Interest Ownership Act.
Felix Unger lives in a condominium with assigned parking spaces. He continually blocks his neighbor’s, Oscar Madison, parking spot. The property manager has already sent two letters informing Felix of the rule violation. Felix has continued blocking Oscar’s parking spot. The Bylaws allow the Board of Directors to fine up to $50.00 per day for any rule violations. It is clear that a fine needs to be imposed upon Felix to try and encourage his compliance with the rules. Remember, the purpose of the ability to fine is not to make extra money for the association. It is to get unit owners in compliance with the rules.
You might think that a fine can simply be issued to Felix and added to his account, but this is not correct. If you wish to impose a fine, you must follow procedure. What is the procedure? Keep reading.
First, a notice must be sent to Felix with a date asking him to come to a hearing before the Board. The notice MUST contain the following information:
It is a good idea to send this notice via both regular and certified mail to ensure that Felix receives it.
Part 2 will cover the hearing and aftermath.