New Challenges Face HOA Boards as Seniors “Age in Place”

October 12, 2011

HOA boards will be forced to confront a new set of challenges as Utah’s 65-and-over population is projected to grow by more than 155% from 2000 to 2030 – namely sorting through legal questions created by the “aging in place” of the massive baby boom generation. Utah has the sixth fastest growth rate in the nation for people age 65 and older.

More and more elderly residents are staying put rather than moving into institutional settings such as retirement or assisted-living communities, reports Virginia attorney Megan McDonald Scanlon. “This trend toward “aging in place” makes it inevitable that a higher proportion of residents in a given community will face challenges such as loss of strength, coordination and mental acuity over time, or will be diagnosed with a catastrophic illness. Unfortunately, this can create significant legal and safety questions for homeowners associations.

“The chronic neglect of house and yard often is the first sign that older residents are declining physically, mentally or sometimes both. But in the most severe cases, elderly residents could actually pose a danger to themselves and others, with potential legal implications for the association. An elderly person might be incompetent to drive and yet still be motoring through a neighborhood full of kids playing and people walking their dogs. Or a person with Alzheimer’s disease might end up wandering through a condominium complex, completely disoriented and in need of help.”

Fortunately, there are things that associations can do to be proactive about the trend toward aging in place. First, understand your responsibilities under the law. It might not be the association’s legal responsibility to make sure people are competent to drive or that they will not wander into the road. But, in Utah, the law states that any person who has reason to believe that an elder or disabled adult is being abused, neglected (including self-neglect, where a person isn’t able to provide necessary care for oneself, including nutrition, personal care, avoidance of health and safety hazards, etc.) or exploited must immediately report the situation to Adult Protective Services intake or the nearest law enforcement office. All good faith reporters are immune from civil and criminal liability and all information is confidential.

Adult Protective Services assesses the situation and, if needed, provides protection from, or prevention of, further incidents. As the Utah Aging and Adult Services website states, “the purpose of investigations is to provide prevention and/or protection to vulnerable and elder adults from abuse, neglect or exploitation while preserving an individual’s rights with the least restrictive intrusion. Consideration is given toward maintaining the accustomed lifestyle of the adult while ensuring a comprehensive assessment of the adult’s total situation in order to determine intervention strategies.”

Associations should take a close look at the existing and future needs of their older residents, with a view toward connecting them with helpful resources and encouraging awareness from neighbors. Financial exploitation of vulnerable adults is increasing each year and it occurs in various forms. 25% of seniors in Utah have problems with salespersons, according to one report, with aggressive door to door tactics being a chief problem. I just saw a local news report the other night about a lady going knocking on peoples’ doors and asking to use the bathroom, gaining a little trust, then robbing the unknowing resident of anything she could grab without the resident knowing. Problems like these can be helped to a degree by vigilant and helpful neighbors and boards who keep an eye out and spread the word when a problem arises.

Local non-profit organizations and state agencies such as Utah Aging and Adult Services are an important source of information and resources and can help keep older residents apprised of technologies and services that promise to make their lives easier. “Examples include the GPS bracelets that some municipalities now use to help families keep track of elderly people who are at risk,” Scanlon said.

A positive, engaged, service-oriented approach is the key to the issues on the horizon arising as a result of the significant increase in the number of seniors and the fact that most of them will “age in place.”

Curtis G. Kimble

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Posted by Curtis G. Kimble

Never Happen in Your HOA? Think Again. Risk Management Is More Important Than Ever.

September 30, 2011

Ignorance is not bliss.  A recent Indiana case highlights the need for homeowners associations to diligently seek out and limit their liabilities.  In March 2011, a jury found an Indiana homeowners association 100% at fault for the drowning death of one child and the personal injury of two other children, resulting in a $30.7 million judgment against the Association.

In March, 2001, three boys were playing on property owned by a homeowners association in Indiana. The property, which contains a lake created by an earthen dam, is open for use by the homeowners.  While there, the boys walked onto the ice near the dam’s overflow crib when one fell through the ice. The other two attempted to aid their brother, but they both fell through the ice as well. One boy drowned.

The Association was sued for negligence.  The plaintiffs claimed the overflow crib created currents that dangerously weakened the ice near the crib from below. They claimed this created a dangerous condition the plaintiffs could not reasonably have had knowledge of, as the ice was visibly safe for walking on at all other areas of the lake.

The plaintiffs claimed that the Association was aware of this condition, but that it failed to place warning signs or restrict access to the area in violation of standard dam safety practices. They also argued that the Association should have anticipated an accident like this would occur, but that it failed to provide safety life preservers, rope or any other safety equipment near the crib.

As Joel Meskin Esq., CIRMS and Amanda L. Krenson, Esq., point out, this case is a wakeup call for all homeowners associations.  Their article reminds us of the many benefits of comprehensive reserve study: “A reserve study is a method of understanding  the HOA’s exposures to risk and liability, whether it be a lake with latent dangers, an unfenced pool, sick trees [that could fall over or with brittle branches ready to break] or the like.  Very often, counsel or management companies, without having a baseline to work from, may not be able to help the association comply with safety issues.  Many dangers and exposures may arise from elements of the association that need repair.  Again, these are items that are monitored in a reserve study.”

Once identified, any dangerous conditions on a property should have warning signs or fences.  The CC&Rs should also contain notice and warning of any such conditions.

We can mutter and disagree with this jury all we want or try to rationalize the distinction between that case and our association, but nothing will change the fact that liability faces HOAs from all directions and a concerted and focused effort is needed to limit those liabilities or risk facing the consequences.

Curtis G. Kimble

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Posted by Curtis G. Kimble

Making Effective HOA Board Decisions

September 19, 2011

Is your board being pulled in many different directions by competing needs and demands?  They key is determining where the board’s focus is most needed and deserved.  A nine-step process was developed by two community managers to help condo and HOA boards make effective decisions.  It can be found in this article (link) and it is a great process from a practical point of view, but since this is a legal blog, I’ll go ahead and give a legal take on the first step of the process.

The first step is to determine whether the immediate issue is really a problem that the association needs to be involved with in the first place.  The board will need to examine the issue and the facts, make inquiries if necessary, review their authority (remember, a homeowners association only has the authority to act given by law or its governing documents) and review their obligations (remember your fiduciary duties and the obligations imposed by the law and the governing documents).

There are many instances where deciding to do nothing at all is a valid, and sometimes the best, decision because of any of a variety of reasons.  While a board has a duty to use ordinary care to manage the property and financial affairs of the community, if a board conducts a reasonable inquiry, considers the relevant factors, and makes an informed decision in what they believe to be the best interests of the association, then even deciding to take no action at all can be a proper decision.

Let’s look at two hypothetical instances where a board failed to act:

1.     The governing documents of the Oceanview Condominium Association provide that the association and any unit owner may enforce the covenants.  Owner A complains to the board that Owner B constantly plays his music too loud, yet other adjacent unit owners are questioned and none of them have noticed such a problem, and when talking with Owner A and Owner B, it is clear there is a long history between the two.  The board decides to take no further action.

Alleged violations are often brought to a board’s attention through a complaining resident effectively seeking to have the board intercede in what is, in realty, a personal dispute between the complainer and another resident.  In such cases, a board, rather than becoming a tool of the disgruntled resident, should refrain from involving the HOA in the issue.

2.  Five members of the Oceanview Condominium Association fail to pay assessments for common expenses.  The board does not take action to enforce their obligation to pay assessments.

In the absence of other facts or circumstances, the conclusion would be justified that the board has breached its duty to use ordinary care and prudence in managing the financial affairs of the association.

The decision not to take any action is still a decision nonetheless and as such it should be noted in the minutes of a board meeting.  I recommend also including a brief statement of the inquiry, factors and/or analysis undertaken by the board in reaching its decision.  Such a step can help the board in the future in ways too numerous to explain here.

The range of power a board holds over its community’s well being and the range of decisions a board is called on to make can be significant.  Every board should have a process for making effective, well-considered and well-documented decisions.

Curtis G. Kimble

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Posted by Curtis G. Kimble

Citizen’s Arrest and HOA Rules?

September 8, 2011

Crazy celebrity antics crack me up, but there’s nothing funny about the possible consequences of carrying out a “citizen’s arrest.”

In this story (link), Farmer Ted from Sixteen Candles was being a real nuisance, pounding on doors, tearing up plants and annoying his condominium unit neighbors to the point that one of them put him under “citizen’s arrest” and the police were called.

Utah authorizes a private person to arrest someone for public offenses committed in his or her presence:

Utah Code § 77-7-3.   By private persons.
A private person may arrest another:
(1) For a public offense committed or attempted in his presence; or
(2) When a felony has been committed and he has reasonable cause to believe the person arrested has committed it.

While Utah law specifically allows for citizen’s arrest, I don’t think many law enforcement officers, and certainly no attorneys, would recommend it.  There is a huge potential for such a situation to go all too wrong.  Besides the obvious risks to personal safety, a person exercising citizen’s arrest would open themselves up to claims of false imprisonment, assault, battery, slander, and on and on.

I hardly need to say it, but if a resident is violating the nuisance prohibitions of the CC&Rs in a manner that is also against the law, I do not recommend that HOA boards and property managers add citizen’s arrest to their list of enforcement options.

Curtis G. Kimble

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Posted by Curtis G. Kimble

Don’t be a Hater! Or Your Peeps Will Accuse the Board of Selective Enforcement

July 22, 2011

As illustrated in this comical but true story: “Chris Brown on Condo Complaints: I’m Being Setup by Haters!” it’s vitally important that an association’s governing documents are in order and that they clearly outline the rights of each owner, including rights to parking spaces.  If parking spaces must be used as handicap spaces at some point due to a Fair Housing request, ensure that the whole process is done legally and properly under the governing documents and the law.  Consult professionals as needed, especially an attorney in the case of a Fair Housing request for reasonable accommodation.

The story in that link above also brings to mind the importance of clear and specific enforcement provisions in the governing documents.  If someone scratches their initials in the elevator, can you fine them?  What about excessive noise or other vandalism?

Perhaps most importantly, this story shows the importance of treating members equally and fairly.  In HOAs, the stakes are high.  Financially, the home is a major investment.  Psychologically, it may be even more important as a safe haven and source of security.  On the other hand, living in an HOA requires some sacrifices of individual freedom for the communal good.  The sacrifices must be fairly shared, however.  Unequal treatment of members who are similarly situated will lead to issues more serious than being called a hater.  The number one problem we see is when personality issues are the impetus behind an enforcement issue, rather than the goal of equal, consistent and uniform enforcement.  Contact us for guidance in any enforcement situation where determining what is fair is causing or may cause difficulty.

Curtis G. Kimble

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Are Automatically Renewing Service Contracts Valid in Utah?

July 12, 2011

This entry deals with contracts within your HOA that “automatically renew” for periods of time beyond that which was originally contracted for.  Many contracts that an HOA Board signs with a  vendor such as a landscaper, pool company, property manager, etc., are intended to “renew” after the inital period expires, unless you, the HOA, give notice of cancellation.  Strictly speaking, there is nothing wrong which such renewal provisions but both your vendors and the HOA needs to know what must, by statute, be contained in such a contract in order for the auto-renewal provision to be valid.  If the statutory language is NOT contained in the contract, then the auto-rewnewal provision is null and void per public policy.    For purposes of this blog entry, I am referring to Utah Code 15-10-101 et seq.

Here are the basics.  As always, before your HOA takes drastic measures to terminate a contract for failure to comply with the Act, please contact us to make sure your actions are proper.   Otherwise you could be alleged to have breache your contract with a particular vendor.  This blog entry is for information purposes only.  Note that the discussion below is for contracts entered into after July 1, 2011, the effective date of the amendments to the existing Act.  However, if you have a contract that was signed before July 1, 2011 and it contains an auto-renewal clause, the prior version of the Act applies.  Again, please contact us if you want to discuss an existing contract.

First, both condominium and PUD association’s are deemed “consumers” under the Act.  “Seller” means any person or entity providing service, maintenance or repair under a service contract.  “Service Contract” means a contract for service, maintenance or repair in connection with real property; or that provide a benefit to the real property.

So, a HOA contract with an accountant probably does not fall under this Act but one with a landscaper will  (Tip:  a lot of HOA’s find themselves in contracts that just are not workable, affordable or beneficial over time.  This Act may provide a way out of such situations but be very careful and  please contact us first).

Second, there are strict notice requirements that must be in the contract in order to make the auto-renewal provision valid.  In other words, auto-renewal clauses are permissble but only if the proper notice is contained in the original contract.

Third, keep in mind that the notice requirements for a service contract entered into after July 1, 2011 and which automatically renew after the expiration of the original term, fall into 2 categories:

(a)  Contracts that renew for periods less than 12 months:   The requirements of “b” below all apply except for the provision requiring that “notice be displayed prominently on the first page.”

(b)  Contracts that renew for periods greater than 12 months  (for example, renews for a 24 month period):  The “Seller” must provide written notice of the automatic renewal provision prominently on the first page of the service contract.  In addition, the seller must provide written notice to the HOA (1) personally, (2) by certified mail; or (3) by prominently displaying the notice of the renewal on the first page of a monthly statement.  The Seller must provide the notice (described above) no later than 30 days (but not sooner than 90 days) before the last day on which the HOA may give notice of the HOA’s intention to terminate the contract.

Fourth, the wirtten notice must be in clear and understandable language and printed in an “easy to read” type size and style.

Fifth, if the above requirements are not complied with the automatic renewal provision is void and unconscionable as a matter of public policy and the contract renews on a “month to month” basis.

Obviously, I am not suggesting that you can or should try to “break” every contract that automatically renews.  I do feel, however, that this statute is an important tool for an HOA to understand in order to help you avoid contracts that truly are not in your best interest.

Once again, thanks for reading this entry.  We have a lot more to come!  Best regards, John Richards

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Posted by John Richards, Esq

Utah HOA Registry Now Operational

June 16, 2011

The Utah HOA Registry required by a new Utah law is now up and operational on the website of the Utah Department of Commerce.  As discussed in our blog entry (click here to read it), all HOAs must register with the Department of Commerce by July 1st.   Here’s a link to the registry (note that you do have to create an account to view or register an HOA, but creating an account is free): secure.utah.gov/hoa

It is crucial that you register using the exact same name as the corporate entity of the  HOA, as it is stated in the articles of incorporation and as it is registered with the Division of Corporations & Commercial Code.  For example, if an HOA is a nonprofit corporation with the name “Whiteacre Homeowners Association,” do not register the association in the HOA registry as “White Acre Homeowners Association.”  This is very important because a search on the HOA Registry for White Acre will not bring up Whiteacre.

This concept applies to all business dealings for an HOA.  It must conduct business using its proper corporate name, not the name of the subdivision itself or some other name or variation of the name that isn’t registered as a Utah business entity.  Click here to look up an incorporated HOA to see exactly how it is listed as a corporation:  https://secure.utah.gov/bes/action/index

Curtis G. Kimble

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Posted by Curtis G. Kimble

How the New Laws Affect You: Non-Condos

June 2, 2011

For non-condo HOAs (all HOAs except condominiums), here’s a summary of how the new Utah HOA laws that went into effect on May 10, 2011, affect you most, as well as some recommended “action items.”  Contact us for help with any action item.  Also, see the other posts on this blog for more detail on the new laws.  This blog does not contain a comprehensive list of the new laws, just those that affect your daily operations the most.

1.  Register or No Lien.  Register as an HOA (separate and apart from registering as a nonprofit corporation) with the State of Utah and keep it updated when directors change, or else you can’t enforce any liens against delinquent owners.  *Action item:  subscribe to this blog (on the right side of this page under “Email Subscription”) and we’ll post the info on how to register as soon as we know about it.

2.  Insurance.  All HOAs in Utah must have property and liability insurance coverage for their common areas (this was not required before in non-condominium HOAs).

Unless the CC&Rs require each homeowner to insure the homeowner’s dwelling, all HOAs with attached housing (such as townhomes) are required to have 100% replacement cost coverage for all permanent improvements, including fixtures and betterments to an attached dwelling made by a homeowner.  The association must set aside an amount equal to the amount of the deductible (or $10,000, whichever is less).  The master policy must be primary, even for unit related losses.   However, the law gives the HOA a method to allocate or transfer risk to the homeowner or homeowner’s policy.  For claims against the association’s master policy which are associated with a particular home, the association can require that homeowner to pay the deductible if a notice had already been sent to all homeowners stating they will be responsible for the deductible on the association’s master policy.  *Action item: send notice to all owners regarding payment of the deductible, and make sure your deductible is somewhere in the $2,500 to $10,000 range to reduce minor or frivolous claims against the master policy by homeowners that drive up the premiums.

3.  Rules.  As of May 10th, rules can no longer be changed or adopted without giving notice to all homeowners 15 days in advance of the board meeting where the rule change will be considered and allowing homeowners an opportunity to be heard at that meeting.  The new or changed rule must then be sent out to all homeowners within 15 days of being adopted.  The homeowners can call a special meeting and disapprove a new rule within 60 days from the date it was adopted, if 51% of the total votes in the association vote to disapprove at the special meeting.

4.  Payoff Info.  An association is now prohibited from charging a fee for providing payoff information needed for closing on a unit, unless the fee is authorized by the CC&Rs, bylaws or rules, and, no matter what, the fee can’t exceed $50.  Payoff information must be provided by the HOA within five business days from when a closing agent makes a proper request for it (has to be in writing, signed and dated by the owner, etc.), or the lien is not enforceable at closing.

When a unit owner is closing on a unit and the owner needs payoff information because he or she has not been paying their share of the common expenses, providing that payoff information is an administrative burden on the HOA that is appropriately paid for by the offending/delinquent owner, not by the other paying owners.   *Action item:  adopt a rule authorizing a fee for providing payoff information.

5.  Reserves.  Every five years, a homeowner-elected board must perform, or hire someone to perform, a reserve analysis by (1) determining which improvements have a useful life of 3 years or more, then (2) determining what the cost is for maintaining those improvements over the next several years, and (3) then determining what they think the appropriate amount of the reserve fund should be.

The reserve analysis has to be reviewed and, if needed, updated every two years.  The reserve analysis has to be presented to the homeowners at the annual meeting each year where the homeowners at the meeting vote on whether to fund a reserve account and, if so, how to fund it and in what amount.  The results of that vote have to be reflected in the minutes.

The money in the reserve fund has to be kept separate from other funds and may not be used for daily maintenance expenses, unless approved by the owners, or for any other purpose other than the purpose for which the reserve fund was established.  *Action Item: for those who haven’t conducted a reserve analysis since March 1, 2008,  the law requires you to do one by July 1, 2012.

6.  Budgets.  A new law requires a homeowner-elected board to adopt a budget annually and to then present that budget to the homeowners at a meeting.  Since the budget will have already been adopted by the board, there is no requirement that the homeowners vote to approve the budget at the meeting.   The homeowners can, however, call a special meeting within 45 days of the first meeting and vote to disapprove the budget.  The budget will be disapproved if 51% of the total votes in the association vote to disapprove it “at a special meeting specifically called for that purpose by the lot owners.”

7.  Electronic Notice.  A new law states that you can provide notice to homeowners solely by electronic means (e.g., email, website) if authorized by your CC&Rs, bylaws, or rules (unless a homeowner opts out in writing).  *Action Item: adopt a rule authorizing electronic notice instead of notice by mail, at least for certain things.

Curtis G. Kimble

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Posted by Curtis G. Kimble

How the New Laws Affect You: Condos

May 31, 2011

So, here’s a summary of how the new Utah HOA laws that went into effect on May 10, 2011, affect you most, as well as some recommended “action items.”  Contact us for help with any action item.  Also, see the other posts on this blog for more detail on the new laws.  This blog does not contain a comprehensive list of the new laws, just those that affect your daily operations the most.

If you’re a condo:

1.  Register or No Lien.  Register as an HOA (separate and apart from registering as a nonprofit corporation) with the State of Utah and keep it updated when directors change, or else you can’t enforce any liens against delinquent owners.  *Action item:  subscribe to this blog (on the right side of this page under “Email Subscription”) and we’ll post the info on how to register as soon as we know about it.

2.  Insurance.  A condominium association’s insurance policy that is renewed or issued after July 1, 2011, is required to have liability coverage and 100% replacement cost coverage for all permanent improvements, including fixtures and betterments to a unit made by a unit owner.  The association must set aside an amount equal to the amount of the deductible (or $10,000, whichever is less).  The master policy must be primary, even for unit related losses.  However, the law gives the HOA a method to allocate or transfer some risk and responsibility to the unit owner (or unit owner’s policy) for unit related issues.  For claims against the association’s master policy which are associated with a particular unit, the association can require the owner of that unit to pay the deductible if a notice had already been sent to all unit owners stating they will be responsible for the deductible on the association’s master policy.  *Action item: send notice to all owners regarding payment of the deductible, and make sure your deductible is somewhere in the $2,500 to $10,000 range to reduce minor or frivolous claims against the master policy by unit owners that drive up the premiums.

3.  Payoff Info.  An association is now prohibited from charging a fee for providing payoff information needed for closing on a unit, unless the fee is authorized by the CC&Rs, bylaws or rules, and, no matter what, the fee can’t exceed $50.  Payoff information must be provided by the HOA within five business days from when a closing agent makes a proper request for it (has to be in writing, signed and dated by the owner, etc.), or the lien is not enforceable at closing.

When a unit owner is closing on a unit and the owner needs payoff information because he or she has not been paying their share of the common expenses, providing that payoff information is an administrative burden on the HOA that is appropriately paid for by the offending/delinquent owner, not by the other paying owners.   *Action item:  adopt a rule authorizing a fee for providing payoff information.

4.  Reserves.  Every five years, a homeowner-elected board must perform, or hire someone to perform, a reserve analysis by (1) determining which improvements have a useful life of 3 years or more, then (2) determining what the cost is for maintaining those improvements over the next several years, and (3) then determining what they think the appropriate amount of the reserve fund should be.

The reserve analysis has to be reviewed and, if needed, updated every two years.  The reserve analysis has to be presented to the homeowners at the annual meeting each year where the homeowners at the meeting vote to determine whether to fund a reserve account and,  if so, how to fund it and in what amount.  The results of that vote have to be reflected in the minutes.

The money in the reserve fund has to be kept separate from other funds and may not be used for daily maintenance expenses, unless approved by the owners, or for any other purpose other than the purpose for which the reserve fund was established.  *Action Item: for those who haven’t conducted a reserve analysis since March 1, 2008,  the law requires you to do one by July 1, 2012.

5.  Electronic Notice.  A new law states that you can provide notice to homeowners solely by electronic means (e.g., email, website) if authorized by your CC&Rs, bylaws, or rules (unless a homeowner opts out in writing).  *Action Item: adopt a rule authorizing electronic notice instead of notice by mail, at least for certain things.

In the next day or two, I’ll post a summary of how the new laws affect non-condo HOAs (all other HOAs).

Curtis G. Kimble

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Posted by Curtis G. Kimble

New Law on Budgets

May 19, 2011

Because of a new Utah law that went into effect on May 10, each homeowner-elected board in a non-condo HOA is required to adopt a budget annually and to then present that budget to the homeowners at a meeting.

Since the budget will have already been adopted by the board, there is no need or requirement for the board to hear input or objections or to conduct a vote of the homeowners on the issue at the meeting.   The homeowners can, however, call a special meeting within 45 days of the first meeting and vote to disapprove the budget.  The budget will be disapproved if 51% of the total votes in the association vote to disapprove it “at a special meeting specifically called for that purpose by the lot owners.”

If a budget is disapproved, the budget that the board last adopted that was not disapproved by members continues as the budget until and unless the board presents another budget to members and that budget is not disapproved.

Note that the vote to disapprove the budget can only take place “at a meeting specifically called for that purpose by the lot owners,” which would not normally be the meeting where the budget is first presented by the board because that first meeting would not normally be called by the lot owners or be called for the specific purpose of having a vote to disapprove the budget.  The reason for requiring a separate subsequent meeting is unclear, but it may be to ensure that adequate notice to all lot owners is provided regarding the purpose of the vote, and also possibly because there should be a degree of difficulty in the process of overturning the decision of the board on this issue, since the board is in the best position to determine the budgetary requirements of the association, rather than the homeowners.

Curtis Kimble

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Assistance and Service Animal Update

May 6, 2011

To my displeasure, I have found that more and more frequently, a common “counterclaim” to an Association’s enforcement actions (regardless of what the Association is enforcing) is an allegation that the Board has violated the Fair Housing Act (“FHA”).  This blog entry deals with Assistance and Service Animals and recent meetings I have had personally with the Utah Anti-Discrimination and Labor Division on the topic (the “UALD”).

 Please remember, that each case is fact specific and this blog entry is for general information only and should only serve as to alert you as to issues to consider.

 People with disabilities are afforded certain federal and state housing privileges to help them cope and deal with their disabilities.  I think we all can agree that this is a fair, moral and good legal concept.  One of the accommodations that MUST be made is a reasonable accommodation for a service or companion animals, but only if strict conditions and requirements are met.  Owners do not have a unfettered right to have an assistance or service animal.

 First and foremost, “service animals” will not be the topic of the Article.  I do not think anyone would disagree that a visually or hearing impaired individual should not have access to a service animal to help them overcome and live better with their challenges.

 However, the issue becomes much more complicated when a request from an owner is made for an “assistance animal” based on a medical condition that may not be as apparent.  This issues often arises in ‘no pet’ communities.

 If you take anything from this Article it should be that a properly permitted assistance animal is NOT deemed a pet in the eyes of the law.  A rough analogy would be such an animal is just as crucial as a wheelchair.  Thus, your pet policies do not apply.

 I am sure you are wondering what entitles someone to have an “assistance animal” in the first place.  First, they must have a disability which limits a major life function.  This can, and in some cases should, be question.  But be careful as to how you go about finding this out.  As described below, it is a health care provider’s job to make this determination – not the Board’s.  Second, a licensed health care provider must provide a “link” between the disability and the animal that is being requested as an assistance animal.

 Most Associations require their members to have their doctor fill out a form that evidences both a disability and certifies that the animal will be of a therapeutic and helpful nature.  To be very concise, if the health care provider certifies this to be true, then the Association really does not have grounds to question the certification.

 If the Association is presented with the doctor’s note; a prescription form; etc; you do have the right to follow up with the issuing health care provider to make sure it came from them and is legitimate but that is about as far as you are allowed to inquire.

 You have no right to inquire about the nature of the disability and your forms and/or questions should not go down that path.

 You are likely asking yourself “what does John mean by a health care provider?”  A physician’s assistant and nurse, etc., will likely qualify as such.  I have tried to argue in the past that the doctor or health care provider must have some training with respect to whatever type of a disability is being alleged.

 For example, I have personally not agreed with an “ear, nose and throat” doctor giving a prescription for an assistance animal for an emotional condition.  However, I have been told (and we will update this blog as more information develops) that it is the doctor or health care provider who puts their name on the line if they certify something that they cannot diagnose properly.

 Therefore, you are allowed verify that the “note” came from a certain person and that this person is a trained health care professional.  But, in most instances, your scrutiny will stop there.  (There will always be exceptions and issues on this topic – but for now – please use this information as your default mindset.  Another question arises – can a chiropractor prescribe an assistance animal?  More to come).

If you make a request upon your owners for a health care provider’s certification, and you do not get it back within a reasonable time, you do not need to make the accommodation until such note is received.

 If someone wants or has “2” cats, the health care provider must prove a need for 2 cats.

 Further, just because an owner had approval for a prior pet, does not mean that that approval extends to the “next pet.”  For example, if a pet dies or is lost, the owner must make a request again.  Remember, this analysis is all about the current pet being the appropriate pet for the particular challenge of the owner.

 You can ask for a medical opinion about the breed or type of animal and whether or not it truly provides a medical benefit over other breeds or types of animals.  However, be careful.  If someone has a “scary dog” that simply does not mean it cannot be an assistance animal. The key consideration is not the breed, but whether it (1) stays under control; (2) stays on a leash; (3) does not physically attack or threaten other owners; (4) does not unreasonably bark or make noise or (5) cause damage to the common areas, etc., that you cannot reasonably remedy.

 Unless a City Ordinance disallows a certain type of breed of dog or other animal you probably cannot challenge the breed unless it shows violent tendencies or is inherently dangerous. In such cases, I believe the Anti-Discrimination Division will defer to the City and PERHAPS allow you to ban that particular type of animal.

 Questions arise about exotic pets – snakes, etc.  This will be discussed in a follow up entry.

Remember, the accommodation that you must give is not unlimited – the owner must be given a reasonable accommodation.  Not all requests will be reasonable.

If you start on a path of enforcing a pet policy, make sure that it is uniform and consistent amongst all owners with the above considerations for assistance animals.  You should accept both verbal and written complaints from other owners who complain about pets in the community and then do your due diligence to make sure the pet is properly in the community pursuant to the law discussed above and your policies.  Please keep a file on each approved assistance animal.

This topic is a complicated one and this blog entry cannot do it full justice.  Please contact us before engaging in any pet enforcement program or if you simply have assistance and service animal related questions.  As stated above, more to come on pets AND Fair Housing Rules related to swimming pools; weight rooms; etc.

Best regards, John Richards

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Posted by John Richards, Esq

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