Various defenses can fight a belated ‘no pets’ restriction
original link: http://www.palmbeachpost.com/search/content/accent/epaper/2007/06/27/a5e_condo_0627.html
By Gary Poliakoff
Special to The Palm Beach Post
Wednesday, June 27, 2007
Question: I live in a planned development governed by a homeowner association. The bylaws say that pets are allowed, but the animal cannot be more than 20 pounds at maturity. The rule has never been enforced.
Many of the owners filled out an application when they were going to buy their unit that stated the type and size of their pet (which was over 20 pounds), and they were approved. Others got dogs bigger than 20 pounds after they moved in and received permission from the president of the board for the dog.
Many of the dogs have been living here for five or more years with no problem. Now, the board (which does not include the president who gave permission) is sending out a letter saying all dogs over 20 pounds must be gone in 30 days. The question is, can they get rid of the dogs who have been living here for more than five years? (This was the time when the president who was giving the permission left the board.) – M.G.C., West Palm Beach
Answer: While the courts have upheld “no pet” restrictions, including those that restrict pets by size and weight, a defense to the enforcement of covenants, conditions and restrictions and/or rules and regulations is selective enforcement, and/or “latches” and “estoppel.” The latter two relate to timeliness of enforcement or waiver by action.
The statute of limitations for covenant enforcement is five years. If it can be shown that the presence of the pet was known to the board, which approved same, subsequent boards will be hard-pressed to enforce the restriction. Waived covenants, conditions and restrictions can be reinstated through re-publication of the covenant, so long as it will only be applied prospectively.
For example, the board can state in writing, “effective Jan. 1, 2008, no new dogs will be allowed.” “Those in residence can stay, but cannot be replaced when they die.” Of course, there is an exception for trained service animals required by handicapped unit owners. Such pets must be allowed under the “accommodation” provision of the Fair Housing Act.
Q: I live in a co-operative apartment complex; a proprietary lease sets forth our ownership rights. Our lease and bylaws stipulate that no pets are allowed. This lease also contains a special paragraph that states the following: “I am in possession of the rules and bylaws and have read and understand it.”
At our last annual meeting, however, one of our most recent owners requested a change in our bylaws in regards to pet ownership in our building.
She implied that if the rules were not changed, she would produce a doctor’s certificate that requires her to have a dog for medical reasons. The reason she gives is that her husband of 18 years passed away, causing her mental anguish.
Why should a single owner be entitled to force her problems on the other owners? Is a doctor’s certificate all that is needed to override our lease and bylaws? – H.H., Fort Lauderdale
A: Several years ago, I wrote an article, “Prescription Pets; The New Miracle Drug.” In it, I advised that, in the aftermath of an amendment to the Federal Fair Housing Act in 1988, requiring community associations to make accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common use areas, I had seen a proliferation of doctors’ letters prescribing pets as being a necessity for treating every conceivable ailment, from depression to arthritis.
While it is a “no brainer” that accommodations are required when a trained service animal is involved, the law is less clear when the symptoms are more abstract. Now, add to the mix a situation I recently advised my readers about involving two competing interests, a unit owner suffering from depression, where a doctor had prescribed a pet, and a unit owner who purposely chose to live in a pet-free building due to allergies.
Nearly 10 years after the law was first enacted, the cases are still all over the board on the question of when a pet must be accommodated.
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Letter to the editor of the Palm Beach Post:
I am pleased to see Gary Poliakoff inform people about the legal right to have pets in no-pet housing. I have read Mr. Poliakoff has a dog, three cats, and a collection of turtles, so it is obvious that he or at least someone in his household knows the value of pets.
In “Various defenses can fight a belated ‘no pets’ restriction” he said “trained service animals required by handicapped unit owners… must be allowed under the “accommodation” provision of the Fair Housing Act.”
Increasingly, both physically and emotionally handicapped unit owners are winning the right to have emotional support animals. The Americans with Disabilities Act defined both physical and mental disabilities. Fair housing law does not differentiate between rights for people with different kinds of handicaps. People with clinical anxiety or depression, for instance, have just as much of a right to have animals for support as people who are blind or deaf. People with other debilitating ailments, eg. cancer, have the need for the support of companion animals. These animals do not need specialized training. You do not need to train a dog to wag its tail or lick your hand. You do not need to train a cat to purr. But instinctive pet behaviors like these have been shown to reduce stress and anxiety, and improve overall well-being for seniors and others. Citizens for Pets in Condos, Inc., has a web page – www.petsincondos.org – dedicated to educating the public about the health benefits of having companion animals.
Maida Genser
Founder, Citizens for Pets in Condos
