By Tamela Eady
I get asked all the time about the issue of service animals. When do they have to be allowed in condos when pet ownership is prohibited or restricted?
Well, the association has to have a pretty strong case to prevail in a dispute. It can file a complaint with the Florida Department of Business and Professional Regulation. The response is likely to be a filing in U.S. District Court alleging violations of the Americans With Disabilities Act and Florida's Housing Rights Act.
For an association, this is going to be an uphill battle if the owner or tenant chooses to contest the board's action. Even getting a default judgment does not guarantee victory. I saw a case from Marco Island in which a tenant successfully claimed that he was in the hospital and unable to attend court.
The fact is that bureaucrats and courts are largely unsympathetic to community associations. Associations are often viewed as the "fun police." Doubt is going to be decided against them. Serious financial implications come into play in the event of a loss. Even if the animal is a pet for comfort rather than a trained companion, victory cannot be assured.
So, what should an association do?
In researching this column, I found out that people have claimed some unusual support animals. The likely one is dogs, but they include llamas (I thought they just knew how to spit) and freaky, trained "rescue chickens."
In any case, the board needs to uniformly enforce association rules. In the event of a non-conformity with a pet restriction, I would advise researching the circumstances before bringing out the big guns. Can they produce a valid doctor's letter documenting the need for the animal?
I would counsel to be very sure of the association's position before taking on that battle. Plus, a "rescue rooster" would get everyone up in the morning.
Next chapter: noise.
I religiously read the Naples newspaper online because I lived there for more than 20 years, wrote for the newspaper and also served on its city council for six years. I never fail to be amazed how the same issues arise over and over.
If you fail to remember the past, are you doomed to repeat it? Seems to come up in government, and in associations, too.
It is a lack of institutional memory. Board members, attorneys, accountants and management companies all change.
Anyway, I read with interest about a mixed-use community that has been mired in controversy since its inception many years ago. The developer has been sponsoring a series of tribute band concerts. They end promptly at 9 p.m. The association board has "unanimously" voted to ban the concerts, even though local reporters have documented many residents dancing on their balconies.
Really — move in over a nightclub and then complain about noise? Now, that really is the fun police.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tew@lawbywiseman. com.
