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Emotional Support Animals & Community Association Rules: What Does the Law Say?

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Many Community Associations adopt rules and restrictions to limit pets within a community. When purchasing a home, this can be especially appealing to those who suffer from allergies, those that have animal phobias, or those who just simply dislike animals in general because of the noise they make or the mess they sometimes leave behind.

However, it has been well established that service animals, “trained to do the work or perform a task for an individual with a disability, whether physical, sensory, intellectual, or other,” cannot be kept out of a community based on a Community Association’s “pet restriction policy.” This is because the Fair Housing Act, which was adopted in 1968, was modified in 1988 to include persons with disabilities as a protected class. In summation, the Act states that no person can discriminate against another with a disability when renting, buying, or selling a house. Since the service animal is an accommodation for the disability, not allowing the animal would be considered discrimination. Also, since the Fair Housing Act is a federal law, this law supersedes any rules and regulations or any restriction within the declaration of the Association.

THE DIFFERENCE BETWEEN A SERVICE ANIMAL AND AN EMOTIONAL SUPPORT ANIMAL

The next question to consider is if there is a difference between a service animal and an emotional support animal. The answer is yes! Service animals require a high level of training and are typically trained to provide specific tasks for their owner. Emotional support animals on the other hand do not require any specific training. Their sole purpose is to provide, as their title suggest, “emotional support.” Service animals are easy to identify as they tend to be dogs and perform very specific tasks such as seeing eye dogs that provide guidance for the blind. However, with emotional support animals, Community Associations continue to see an increasing number of owners who claim to need emotional support animals with no outward demonstration of a need for support nor the animals demonstration of anything other than being a household pet.

This has left most Associations asking the quintessential question, “what criteria do we use to validate any claim from an owner as to the need for an emotional support animal or animals in some cases?” This is a difficult question to answer and has become a much-abused provision of the law in recent times.

THE AMERICANS WITH DISABILITIES ACT

But we are not without any legal support. The law does provide Associations with some guidance.  The Americans with Disabilities Act limits support animals to dogs and miniature horses. The law also imposes penalties for false claims, although we do warn Associations that it is very difficult to prove such a claim. Associations can also require supporting documentation from an authorized physician or therapist stating the need for the animal. The law protects an individual’s right to privacy as to their specific disability but does not prevent an Association’s right to request proof of the need for an emotional support animal or the need for multiple animals if the case presents itself. The Association can also adopt reasonable rules that the owners must follow so that these animals do not interfere with the peaceable enjoyment of the community by the rest of the residents. For example, one such rule could include that all emotional support animals must always be on a leash when outside an owner’s residence or fenced in yard. Another rule could be that all owners are responsible for picking up after their animals and properly discarding all animal waste.

NAVIGATING THE FINE LINE

There is no denying that animals definitely provide therapeutic healing for those who need it. However, more often than not, we have seen many owners try to get their pets into communities that have “no pet” polices under the guise of them not being a pets but rather emotional support animal with a certificates printed off the internet. This has, in turn, created a very negative connotation and atmosphere surrounding emotional support animals.

As a community, we cannot let the selfish acts of some affect the true medial needs of others. So, Associations can arm themselves by knowing the laws regarding emotional support animals, require owners to provide proper documentation and implementing reasonable rules and regulations for emotional support animals within your community. This will allow those who truly need the support of a fury friend to receive the aid they need and hopefully deter others from violating the laws and instead choose to live in a pet friendly community instead.

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Amending HOA Documents And The Unlicensed Practice Of Law

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Often times, a community association relies on an attorney to assist with the modification of its governing documents, and to provide answers to questions that affect not only the rights of the community association but its members as well.

There are certain documents that must be completed by an attorney, based on the fact that they involve the interpretation of Florida Statutes while requiring a level of legal expertise and a familiarity with the Association’s Articles of Incorporation, Bylaws, Covenants, and Declarations. Further, based on the fact that the officers and directors of an association owe a fiduciary duty to its members, it is important to keep in mind that any document pertaining to their obligations, or the obligations of its members, be drafted properly.

What HOA activities require an attorney?

The following activities are considered the unlicensed practice of law if performed or completed, on behalf of the association, by anyone other than an attorney:

  1. Drafting a claim of lien;
  2. Drafting a satisfaction of claim of lien;
  3. Drafting a Notice of Commencement Form;
  4. Determining the timing, method, and form of giving notice of meetings;
  5. Determining the votes necessary for certain actions, which would entail interpretation of certain statutes and rules;
  6. Answering a community association’s question about the application of law to a matter being considered,
  7. advising a community association that an action or course of action may not be authorized by law or rule;
  8. Drafting any document that must comply with Florida law; and
  9. Drafting the documents required to exercise a community association’s right of approval or first refusal to a sale or lease.

Due to the fact that such actions may affect, impair, or enhance the rights of numerous homeowners and their property interests, an attorney should be the one to draft and advise on them. Allowing anyone other than an attorney to complete these tasks opens up the association to liability, as well as the possibility of Florida Statute violations.

What are some HOA activities that are not considered the unlicensed practice of law? 

Based on a Florida Advisory Opinion issued in 1996 and 2015 by the Florida Supreme Court, there are certain documents that can be drafted without the assistance of an attorney. Although this opinion references the actions of a Community Association Manager, the corollary is that it remains applicable to our discussion on HOA board conduct and the conduct of its members. With regard to the actions of non-lawyers, some of the following tasks may be performed:

  1. A change of registered agent or office for corporation’s forms;
  2. Annual corporation reports;
  3. First and second notices of the date of the election;
  4. Ballots;
  5. Written notices of the annual meeting;
  6. Annual meeting or board meeting agendas;
  7. Affidavits of mailing; and
  8. Completing a BPR Form 33-032.

If the additions or amendments pertain specifically to clerical matters and do not involve the interpretation of statutes, documents, or providing legal advice, the above-stated actions may be performed by a non-lawyer.

What are some areas of HOA law that remain unclear?

The Courts have deemed the following areas “grey”, therefore depending on your individual circumstances, you may or may not need an attorney to assist with the following:

  1. Editing a limited proxy form IF the modification involves:
  2. Filling in the name of the community association,
  3. Filling in the name and address of the owner,
  4. Phrasing a yes or no voting question concerning either waiving reserves or waiving the compiled, reviewed or audited financial statements requirement;
  5. Phrasing a yes or no voting question concerning carryover of excess membership expenses; and
  6. Phrasing a yes or no voting question concerning the adoption of amendments to the Articles of Incorporation, Bylaws, or condominium docs.

In addition to the Florida Supreme Court Opinions, an Association’s Declaration and Bylaws typically delineate the powers that a board of directors and its officers possess specifically with regards to the amendment of any governing documents. If such language is not included within the Association’s governing documents, an attorney should be consulted in order to determine how they should be amended.

If you have any questions regarding the actions of your homeowners’ association, or if you need assistance with drafting any of the above-stated documents, do not hesitate to contact The Orlando Law Group at 407.512.4394 to schedule a consultation today.

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Florida COA and HOA Restrictions on Solar Panels; What You Need To Know

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Whether you are a member living within a development governed by a homeowners association (“HOA”) or a condominium owners association (COA) and interested in installing solar panels on your home, or a member of the Board of Directors of a HOA, COA, or its respective architectural review committees, (ARC), in Florida, it would behoove you to become familiar with Florida Statute 163. It is essential that you understand what F.S. 163 says about COA and HOA restrictions on solar panels in so far as its governance and application to energy saving devices such as solar panels and F.S. 163’s effect on the governing documents of your association.

Clearing the confusion about COA and HOA restrictions on solar panels.

As one would guess, the primary area of dispute in an association controlled development is not usually the use of solar panels or whether energy saving devices are permitted or not, but rather, where those panels may or may not be located on the roof of the home or condo. May the solar panels be seen from the street? May the solar panels face the street or fence line? These are some of the questions about HOA restrictions on solar panels that Florida Statute 163 governs and attempts to answer. Florida Statute 163.04(2) expressly prohibits homeowner and condo associations from preventing its members from installing “solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Id. However, that very same statute and subsection does permit associations to “determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.” Id.

Recommendations for homeowners interested in installing solar panels in a COA or HOA governed community.

Clearly there are limits to HOA restrictions on solar panels. With this being stated, it is recommended that even though the association cannot deny the homeowner the ability to install energy saving devises such as solar panels on their property, that the member should still follow the applicable procedures set forth by the architectural review committee before any such installation. In conjunction with this issue, the architectural review committee of each association should also develop a well thought out Solar Policy. This policy should address solar and roof energy saving issues within an application to be submitted by all homeowners/condo owners before the installation of such devices. The application should address, among other issues particular to your development, a satellite or aerial image of the roof with the proposed locations of the solar panels; roof slope and angles; north/south orientation; clear illustration of any shading issues; manufactures product information for the units to be installed on the home; and for those homes intending to install the solar panels on a street-facing front roof that is not within 45 degrees of due South and faces the street, an explanation of why installing the solar panels on the other available roof space would not be equal to or more efficient than, that the street facing roof. Ensuring that the home/condo owner and the association are all on one page and at least attempt to resolve any disputes prior to the installation process can potentially save both the association and member thousands in litigation expenses, noting here that F.S. 163.04(3) does award the prevailing party to any such litigation, its attorney’s fees, and costs.

If you are a member of an association or on the Board of an association and are having problems with Florida Statute 163 and its applicability to your governing documents, please contact The Orlando Law Group and schedule an appointment to speak with one of our outstanding attorneys about your problems and concerns.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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