Announcements – Page 14

Creating Community: From Developers to Community Associations

If you are looking for a newly built home in San Diego County, the odds are that home will be in a community association. When done right, community associations provide an immediate sense of community for new homeowners.

Community associations are typically found in condominiums or planned developments where the homeowners share common amenities such as pools, clubhouses, parks and playgrounds. According to a 2016 study by the Community Associations Institute, there are approximately 45,400 community associations in California, with an estimated 9.16 million residents.

In San Diego County, the vast majority of new homes are located in developments with community associations. Community associations are usually set up as a nonprofit corporation with a board of directors. While the development is being built, the board of directors consists of representatives of the developer and some homeowners.

Eventually, the association is turned over to the homeowners. This usually occurs after a certain number of properties have been sold. It’s important to have a good transition team, not only for the handover but also to set up long-term goals and success for the association.

“Strong, focused leadership at the outset of a community sets the tone for the future of the community,” said attorney Susan Hawks McClintic, co-managing shareholder at Epsten. “Developer representatives on the board of directors can play an important role in transitioning from constructing buildings to building relationships and a sense of community.”

The board of directors guides the community association. By serving on the board during the development, the developer is able to continue the vision of the original development plan. As the transition continues, that vision is passed on to the new homeowner board members.

“You may have heard some grumblings about someone monitoring whether you mow your lawn or paint your house the right color, but community associations offer many positives. Besides, do you want your neighbors to paint their house bright purple?” McClintic said. “In the 2016 study by the Community Associations Institute, 87 percent of the responding residents in community associations rated their experiences with the association as positive or neutral.”

It’s important for homeowners to get involved. Serving on the board is not for everyone, but all homeowners can attend meetings. Anyone interested in becoming a board member can learn the statutes and laws and get training on how to lead an effective association.

Homeowners need to share their vision of community from the start. Should it be a place with social events so neighbors can meet one another? Is a community garden important? What about quiet time? Planning some long-term goals is a great way to get the conversation started about the vision for the community.

Don’t hesitate to bring your ideas to the table. Working with the developer representatives on the board of directors is the best way to create a welcoming community and lay the groundwork for preserving the value of that community’s properties.

[1] This article was originally published by the San Diego Union-Tribune on August 16, 2017

Solar Panels and Solar Energy Systems: The Association’s Ability to Regulate Installation on Separate Interest Property

By Jillian M. Wright, Esq.

More and more homeowners are turning to solar panels and solar energy systems (collectively, “solar energy systems”) as a way to save on energy costs. The State of California, ever at the forefront of conservation and renewable energy, has incentives and statutes which are meant to encourage “going green.” One such statute provides that common interest developments (or “associations”) may regulate the placement of solar energy system equipment, but must do so within strict parameters. With the increasing prevalence of homeowners wanting to install solar energy systems, associations should be aware of the parameters discussed below.

Impact of California Law: Civil Code Sections 714 & 714.1 and the Tesoro Case

In September 2014, the California legislature passed AB 2188 altering the definition of what constitutes a “reasonable restriction” on solar energy systems. In sum, conditions listed in an association’s governing documents are valid and enforceable only to the extent the conditions do not conflict with the provisions in California Civil Code sections 714 and 714.1. These statutes override conflicting covenants in an association’s governing documents and limit the scope of authorized regulation by an association. California Civil Code section 714(a) states:

Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.

In no uncertain terms, this section prohibits any declaration and other governing document provision(s) from prohibiting or restricting the installation of solar energy systems outright. Civil Code section 714(b) states that it is the public policy of the State of California to promote and encourage the use of solar energy systems. As such, any restrictions on the installation of these systems are declared invalid if the restrictions “significantly” increase the cost of the system or “significantly” decrease the efficiency of the system. A “significant increase” in the cost of a solar domestic water heating system or solar swimming pool heating system that complies with state and federal law is one that increases the cost more than 10% over the cost of the system, but in no case more than $1,000. A “significant increase” in the cost of a photovoltaic system[1] that complies with state and federal law is a cost increase of more than $1,000. A “significant decrease” in the efficiency of the system is one that decreases the efficiency by more than 10% over the efficiency of the owner’s originally proposed system. Restrictions on system placement are generally valid if they allow for an “alternative system of comparable cost, efficiency, and energy conservation benefits.”[2]

The penalty for willful non-compliance with Civil Code section 714 is $1,000, plus the amount of any actual damages suffered by the owner. (Civ. Code § 714(f).) Attorney’s fees are also recoverable by the prevailing party. (Civ. Code § 714(g).)

An association may require an owner to apply for and obtain prior architectural approval for a solar energy system pursuant to Tesoro Del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619.[3] In Tesoro, the court upheld a restriction requiring prior approval of a solar energy system to allow the association the opportunity to determine if a more aesthetically pleasing option for the solar energy system was available that fell within the parameters afforded under Civil Code section 714. In that case, the owner actually installed the solar energy system without prior approval from the association. The association sued the owner, and the owner argued approval was not necessary because he was entitled to install the system under Civil Code section 714. The court upheld the prior approval restriction because the association presented an alternative that would have been more aesthetically pleasing and was still within the cost and efficiency parameters. The court further held the association did not have a burden to propose a comparable alternative system. It held that once the owner’s application was denied, the owner had the burden to reapply for approval with a comparable system which addressed the association’s aesthetic concerns.

The statute also mandates that review of an application cannot be “willfully avoided or delayed.” An application is to be reviewed and approved in writing in the same manner as an application for any other architectural application.[4] “If an application is not denied in writing within 45 days from the date of the association’s receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information.”[5] However, if an association’s governing documents include a shorter response time frame, we suggest the association provide its written decision on a proposed solar energy system application within the time frame stated in the governing documents to avoid any potential risk of the application being “deemed approved” by a court.

Summary
An association can require that solar panels generating home electricity (i.e., photovoltaic panels) and solar panels heating pools/spas be placed in an area of an owner’s separate interest property that is more aesthetically pleasing from the street view, if the association can demonstrate that the association’s preferred location does not “significantly increase the cost” or “significantly decrease the efficiency” of the system. Keep in mind, the burden of proving that the association’s preferred location does not violate these standards rests with the association, not the homeowner. Thus, if an association requests a different location over the location preferred by the homeowner, the association must be prepared to show that the association’s proposed alternative location does not violate the standards set forth in Civil Code section 714. However, as volunteer board or committee members are not typically in the business of designing solar energy systems, it is ultimately up to the owner to propose a comparable system which addresses the association’s aesthetic concerns.

[1]   A “photovoltaic system” is one that generates electricity.
[2]   California Civil Code section 714(b)
[3] Tesoro was decided before AB 2188 was signed in 2014. AB 2188 reduced the maximum allowable parameters of §714 from 20% cost and efficiency to 10%.
[4]   California Civil Code section 714(e)(1)
[5]   California Civil Code section 714(e)(2)(B)

Mary M. Howell, Esq. becomes Of Counsel to Epsten, APC

August 1, 2017 – Epsten Grinnell & Howell, APC (“EG&H”) is pleased to announce the transition of Senior Shareholder Mary M. Howell into her new role as Of Counsel to the firm effective January 1, 2018. After 25 years at EG&H, in Mary’s new role she looks forward to sharing with the firm’s attorneys and staff her decades of knowledge, insight and expertise as a mentor and resource behind the scenes.

Mary has been practicing law since 1976, joined EG&H as a shareholder in 1992 and was inducted into the College of Community Association Lawyers (CCAL) in October of 1996.

Jon Epsten, EG&H founder, and Susan Hawks McClintic, Co-Managing Shareholder are proud to work with the finest community association lawyers who will continue offering the best in innovative, practical and efficient legal counsel to community associations. They are supported by the firm’s attorneys and their unique, multidisciplinary skills and experience including general association representation, developer transition, civil litigation, civil engineering, construction and construction defects, appellate counsel and advocacy, and employment law.

In addition, the firm is proud to maintain its contributions and services to the improvement of the industry through its attorney and staff involvement on several legislation action committees and industry organizations throughout Southern California.

To read the full press release, please click here.

10 Lessons for Community Association Directors

By Mary M. Howell, Esq.

Over the last 40 years of representing associations, I have had many occasions to counsel boards in the midst, or right on the edge, of association meltdowns.

Here are 10 lessons I have shared with directors over the past:

If you think it could land you on the 6 o’clock news, think again.
Every homeowner confronted with a breach of the CC&Rs is convinced the board is ONLY pursuing him/her, not the neighbors who are doing the same thing…
Your job is to let that owner know that the board is prepared to pursue all violators. Particularly if names and addresses are provided… and then to explain patiently that you are not going to share the prurient details with one and all.
Directors, don’t have private conversations with members.
One or both of you are going to hear and remember selectively, and possibly incorrectly.
No good turn goes un-stoned.
If you lean over backwards to help someone, that’s going to be misinterpreted as unfairly favoring one homeowner over another.
“Transparency” for the sake of transparency isn’t always a good idea.
Some aspects of association governance are SUPPOSED to be confidential, usually to protect the association from getting sued for something. It is no secret that crowds cannot keep one.
Avoid conflict.
The wise man always does, until the insult cannot be borne at risk of damage to all. A soft word turns away wrath. Don’t stoke the fires of dissent. Make peace, not war. Those are all ways of saying, ‘Litigation is not healthy for children and other living things.’ PS, it’s ALWAYS, ALWAYS, ALWAYS expensive and should be regarded as a last resort.
Always curtsy, it gives one time to think.
Borrowed loosely from Lewis Carroll. The idea is this: no one, not even highly paid professionals, come up with the perfect riposte while under fire. You won’t serve yourself or your community very well if you open mouth before engaging brain.Just say, “a serious accusation/question/concern such as this deserves an equally serious response. We will investigate the matter carefully and advise you of our findings.”
It takes TWO to tango.
You have to know how and when to engage. Don’t be provoked into a nasty or heated reply just because the speaker gets carried away, because you will not win. Let the speaker finish. If you can reply briefly and effectively, with facts to document your answer, then do so. Otherwise, DON’T engage. Simply note, at the end of a tirade, “Obviously we disagree. I’ll respond at length shortly. Let’s move on.”
If a meeting is getting out of hand, recess briefly, and LEAVE THE ROOM.
After the recess is over, if the meeting is STILL nasty, consider a motion to adjourn. You’re a volunteer, for Pete’s sake. Neither law nor fiduciary duty requires you to put life and limb at risk.
Remember what it’s about: Service.
Service to the entire community, given freely and responsibly. Not ego, not proving something (or proving someone else is wrong.) Service always comes at a cost, by the way. Too often, the only thanks you will get is found under “T” in the dictionary. But that’s what you signed on for. The people worth helping in the community will know the truth of the matter.There’s a saying in my husband’s country: ‘A good horse kicks up dust.’ If you have provoked the naysayers in your association to protest, it’s because you were brave enough to take a stand. The satisfaction of knowing that might not do away with the nastiness you endure, but who ever said doing the right thing would be easy?

Don’t be Shocked: Statutory Immunity Won’t Necessarily Protect Your Association from AED Liability

Some community association boards struggle with whether or not to install Automatic External Defibrillators (“AEDs”) in common area facilities. While possible AED advantages are evident—they can be instrumental in saving lives—boards are wise to consider potential liabilities involving their installation and use.

While California law contains a “Good Samaritan” type of shield from liability involving AEDs, not all associations can meet the conditions necessary to receive the law’s protection.

Immunity statutes also do not prevent lawsuits or claims involving AEDs from being brought, but simply protect against awards of damages. It is therefore important for an association with an AED to have sufficient insurance coverage for claims that could arise out of AED installation and use, including use by employees, agents and directors or other association volunteers.

Civil Code section 1714.21 provides immunity to persons who render emergency care by use of an AED and to persons or entities who acquire an AED for emergency use. However, Health and Safety Code section 1797.196 establishes multiple prerequisites for persons or entities who acquire AEDs to qualify for the immunity afforded under the Civil Code. Despite these statutes, liability could potentially result from negligence in AED installation, maintenance and operation, and from failure to strictly comply with the statutory requirements and their continuing obligations for regular maintenance, testing, training, reporting, recordkeeping and more. Volunteer turnover and other personnel changes can make compliance challenging. Before installing an AED, community association boards should become familiar with the details of these requirements and determine whether or not compliance is achievable.

In other words, users/operators of an AED would be immune from liability if the device were operated in a manner that was neither grossly negligent nor intended to cause harm. Note that if a doctor or nurse is going to be using the AED, they should check with their own malpractice insurance carrier as they may not have the same protections from liability as someone who is not a trained health care provider. The acquirer/provider of the device (the association) would likely also be immune if it complies with all of the statutory requirements in Health and Safety Code section 1797.196.

The burden of meeting those statutory requirements is a significant continuing obligation. Health and Safety Code section 1797.196(b)(1) provides, in pertinent part, that a person or entity that acquires an AED shall do all of the following:

Comply with all regulations governing the placement of an AED.
Notify an agent of the local EMS agency of the existence, location, and type of AED acquired.
Ensure that the AED is maintained and tested according to the operation and maintenance guidelines set forth by the manufacturer.
Ensure that the AED is tested at least biannually and after each use.
Ensure that an inspection is made of all AEDs on the premises at least every 90 days for potential issues related to the operability of the device, including a blinking light or other obvious defect that may suggest tampering or that another problem has arisen with the functionality of the AED.
Ensure that records of the maintenance and testing required pursuant to [Health and Safety Code section 1797.196] are maintained.

For an AED placed in a building, Health and Safety Code section 1797.196(b)(2) requires the building owner to do all of the following:

At least once a year, notify the tenants as to the location of the AED units and provide information to tenants about who they can contact if they want to voluntarily take AED or CPR training.
At least once a year, offer a demonstration to at least one person associated with the building so that the person can be walked through how to use an AED properly in an emergency. The building owner may arrange for the demonstration or partner with a nonprofit organization to do so.
Next to the AED, post instructions, in no less than 14-point type, on how to use the AED.

Aside from statutory requirements, which are subject to change, AED manufacturers and installers also have their own requirements. Most require that persons on-site are trained in AED use, and some associations have removed AEDs because installers will not service an AED (not even installing new batteries) unless on-site persons are trained. This poses an additional challenge, especially for communities without on-site staff. Finally, if an association installs an AED and later removes it, removal should be done with clear, documented, advance notice to the membership, who may have built up an expectation that an AED is there and developed reliance upon its presence.

This discussion of potential liabilities involving AEDs is not exhaustive. Community association boards are encouraged to consult with their association’s legal counsel, insurance carrier(s) and potential AED supplier and maintenance provider to learn more. For additional information about case law and legal principles involving AEDs, also see “AED Requirements Under California Law.”

Staying Out of the Dog House… How to Handle Animal Related Requests for Reasonable Accommodations

By Karyn A. Larko, Esq.

When a Board receives any request for a reasonable accommodation, whether the request is to keep an animal prohibited under the CC&Rs, to bring a service animal into portions of the community where animals are prohibited or for some other exemption to the association’s CC&Rs or rules, the Board must make a good faith effort to consider each of the following factors when deciding whether to grant or deny the request:

Does the requesting party have a qualifying disability?
Federal law defines a disabled person as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” Walking, talking, hearing, seeing, breathing, learning, performing manual tasks and caring for oneself fall within the purview of “major life activities.”
Is the accommodation requested by the disabled person “reasonable”?
There are several factors to consider in determining the reasonableness of the request, including, of course, whether the Association has the power to grant the request. Another factor to consider is the cost to grant the accommodation as opposed to the benefit to be gained. If the cost to the association is minimal and the benefit to the disabled person significant, the balance is in favor of granting the accommodation.
Is the requested accommodation “necessary”, not just convenient, to enable the disabled person to have an equal opportunity to use and enjoy his or her home or the common area facilities?
Under the Federal Fair Housing Act (“Act”), a disabled person is not entitled to an accommodation if the accommodation is merely convenient, but he or she is entitled to a reasonable accommodation if the accommodation is necessary to allow him or her the equal use and enjoyment of his or her home or the common area facilities. The purpose of the Act is to grant disabled persons “equal” not preferential use and enjoyment of their homes and the common area.

Additionally, how does a board know if the resident is really disabled – especially if the disability is not apparent?

It is important to know that a Board may not ordinarily inquire as to the nature or severity of a resident’s disability. However, in response to a request for a reasonable accommodation, the Board may generally request disability-related information only that:

Is necessary to verify that the person meets the definition of disabled under Federal law;
Describes the needed accommodation; and
Shows the relationship between the resident’s disability and the need for the requested accommodation.

Having said this, if the resident’s disability is obvious, or otherwise known to the Board, and if the need for the requested accommodation is also readily apparent or known, the Board may not request any additional information.

If the resident’s disability is known or readily apparent to the Board, but the need for the accommodation is not readily apparent or known, the Board may request only the information necessary to evaluate the disability-related need for the accommodation.

If the resident’s disability is not known or readily apparent to the Board, the Board can require the resident to provide written verification of his or her disability from a health care professional. Once the Board establishes that a resident is disabled, the Board should only request the information necessary to evaluate whether the requested accommodation is needed.

Never forget that an association must keep confidential all of the information it obtains related to a resident’s disability. This information cannot be shared with the membership or any other persons unless the disclosure is required by law.

We are here to help you navigate this tricky area of the law and avoid costly claims of discrimination. …if in doubt, call your legal counsel!

The Litigation Discovery Process for Beginners

Litigation can be complex, expensive, time consuming, and contentious! These same four words can be said of discovery, the process whereby each side learns the facts supporting the other side’s case.

Litigation and discovery, in fact, go hand in hand, and although difficult at times, it is important to understand the process and appreciate why it is not only necessary but a powerful and important tool.

Discovery, or the “discovery process,” is exactly what the name implies:

It is the process of discovering evidence to prepare your case for trial.
It also involves discovering the evidence of the other party.

The purpose of discovery, and the ideals behind it, is to promote the truth-seeking function of litigation. In other words, it is designed to make trial less of a game and more of a fair contest.

There are two broad categories of discovery: Written Discovery (which includes interrogatories and requests for production of documents, the two most common forms), and depositions.

Interrogatories: Interrogatories are nothing more than written questions prepared by the attorney and sent to the other side. The opposing party is then required to answer the questions and affirm, under oath, the answers are true. These questions are usually very specific, asking for information such as dates and times, descriptions of events and even the identification of witnesses.

Requests for production of documents: Not surprising, requests for production of documents require the other party to produce documents in that party’s possession which are relevant to the case. The determination as to what is or is not relevant hinges upon the particular facts of the matter at hand; there is no “one size fits all.” Unlike interrogatories, requests for production of documents may be sent to non-parties. Non-parties are individuals or business entities that are not involved in the lawsuit but may possess documents that contain information that is relevant to it.

Depositions: A deposition is a sworn statement of a party or a witness that is given in the presence of a court reporter. The court reporter records the questions asked of the witness and the answer he or she gives. The court reporter then converts the recording into a written transcript that can be used at trial if the witness is unavailable. The deposition transcript can also be used to ensure the witness does not change his or her testimony at a later date.

Ultimately, discovery enables a more comprehensive understanding of the facts and allows for more informed and strategic decisions as the case is being prepared for trial. Having a clear path on which to navigate also increases the possibility the case may settle.

Because of this, investing time and effort in the discovery phase can have considerable cost savings later on down the road!

The Wheels of Justice Speeding Up! Bank of America v. Miami

By David A. Kline, Esq.

A recent Fair Housing Act case might give community associations another tool to use in addressing bad actors who commit unlawful discrimination within the community.

The City of Miami sued Bank of America and Wells Fargo for predatory mortgage lending practices that caused a reduction in the City’s tax revenue. The City alleged the banks violated the Fair Housing Act by lending money to minority home buyers on less favorable terms (higher interest subprime loans) than similarly qualified non-minority applicants and homeowners with higher interest subprime loans were more likely to default on their mortgages. The banks were allegedly unwilling to renegotiate the terms of their predatory loans and foreclosed on many properties in minority neighborhoods. This reduced the value of the foreclosed homes and other homes in the neighborhoods, which caused a reduction in the City’s tax revenue. The complaint also alleged the City had to spend more money on services in these neighborhoods to reduce blight and address the dangerous conditions found in communities with high vacancy rates.

In response, the banks argued that the City was not a “proper party” to this lawsuit, because it was not the direct victim of the banks’ alleged discriminatory conduct. Essentially, the banks asserted that the City did not have standing to sue because the City was not within the Fair Housing Act’s “zone of influence.” The banks also argued that the alleged damages suffered by the City were too far removed from the banks’ alleged discriminatory conduct for its wrongdoing to be considered the proximate cause of the City’s lost tax revenue.

In a 5-3 decision, the United States Supreme Court ruled that the City was an “aggrieved party” under the Fair Housing Act and that it has standing to sue, because Congress intended to confer standing broadly under the Fair Housing Act. The Court remanded the case to the lower court to determine whether there was a direct relation between the injury asserted and alleged discriminatory conduct. [1]

What does this mean and how far could such an expansive reading of standing extend to an association?

For example, if a community association learns of discriminatory conduct within its community, would the association be able to bring a Fair Housing Act complaint against the perpetrator?

Suppose a homeowner harasses his neighbor because of the neighbor’s race, and the association’s board and management divert resources to investigate and remedy violations of its governing documents. Could the association sue the harassing homeowner under the Fair Housing Act?

What if a board member sexually harasses a resident during a board meeting? Certainly, the association could be exposed to liability for that director’s conduct. But, could the association distance itself from that director’s conduct by suing him for violating the Fair Housing Act?

Suppose the board of directors grants a request for a reasonable accommodation under the Fair Housing Act to provide a tenant with a disability exclusive use of a desirable parking space. If an angry homeowner thereafter harasses that tenant, because of the accommodation, could the association sue the homeowner for violating the Fair Housing Act?

The answers to these questions are not yet known. However, in 2016, the Department of Housing and Urban Development (HUD) changed its regulations governing enforcement of the Fair Housing Act to clarify that housing providers, including associations, may (and perhaps in the view of HUD, should) be liable for failing to take appropriate action in response to alleged discrimination or harassment within their communities, and where such bad behavior is not necessarily a violation of the CC&R’s.

This indicates that the Fair Housing Act may be used as a sword (not a shield) by associations confronted with unlawful discrimination. In other words, the way seems clear for associations to commit resources and use the Fair Housing Act to combat discrimination, at least where the bad actors are members or residents of the association.

[1] In contrast, consider Dodaro v. Std. Pac. Corp., 212 U.S. Dist. LEXIS 47099 wherein plaintiff homeowners filed suit against developers who targeted poor borrowers, and facilitated subprime loans with accleration clauses, the failure of which loans allegedly led to the devaluation of all other homes in the community. The developers sought and were granted dismissal of all claims.

Thomas Jefferson School of Law Receives $140,000 Gift from Epsten, APC for Trial Advocacy Program

Epsten, APC is proud to announce that the Thomas Jefferson School of Law will receive a $140,000 gift from the firm to support the Thomas Jefferson School of Law’s trial advocacy program. The endowment fund will be known as the Epsten Trial Advocacy Program and will help fund the student trial practice teams in competitions in which the law school participates.

The Thomas Jefferson School of Law’s Mock Trial Team has an outstanding track-record of success against teams from the nation’s top-ranked law schools. The Mock Trial Team competes in trial advocacy competitions, and students develop courtroom skills of particular value to a trial lawyer, such as a criminal prosecutor or defense attorney, a personal injury or medical malpractice plaintiffs’ lawyer, or an insurance defense lawyer.

Epsten, APC is pleased to contribute towards the Trial Advocacy Program. It is not only a great way to support the alma mater of Jon Epsten and that of several other Epsten, APC attorneys, but it also is a great way to give back to the community and support our next generation through the best asset anyone can be given, a quality education.

The mission of Thomas Jefferson School of Law is to provide an outstanding legal education for a nationally-based, diverse student body in a collegial and supportive environment with attention to newly emerging areas of law, particularly those related to technological development, globalization and the quest for social justice. Located in Downtown San Diego, Thomas Jefferson School of Law has evolved into an innovative, cutting-edge law school, devoted to the individual needs and success of its students.

Why are There Animals in the Clubhouse When Your Governing Documents Prevent Pets?

By Karyn A. Larko, Esq.

It is common for associations to have CC&Rs provisions or rules that prohibit residents from bringing pets into the clubhouse, pool complex or other portions of the common area. It is also increasingly common to see residents bring animals in these areas despite such prohibitions.

While it may appear that this trend is indicative of a growing disregard for the important role associations and their governing documents play in residential communities, the reality is that in many cases, these residents may have a legitimate right under federal law to have their animals with them.

Remember, homeowners associations are subject to the Federal Fair Housing Act (the “Act”). Under the Act, a housing provider (a homeowners association is considered to be a housing provider) must grant reasonable accommodations to those with qualifying disabilities whenever the accommodation is necessary to give the disabled residents an equal opportunity to use and enjoy their homes and the common area facilities.

One of the most common disability-related requests associations receive is to allow disabled residents to bring their service animals into portions of the common area where pets are prohibited. Under the Act, both traditional service animals (e.g., seeing eye dogs) and emotional support or comfort animals (“ESA”) qualify as service animals.

Because disabilities requiring ESA (e.g., depression, anxiety, PTSD) may not be readily apparent, it may not be possible to differentiate a pet from an ESA through visual observation of the resident. Moreover, because no specific training, skills, certification or characteristics are needed to be an ESA, many animals that you might not envision being service animals may, in certain circumstances, qualify as ESA service animals.[1]

For these reasons, we recommend:

Broach any apparent pet related governing document violation cautiously and discretely.
Seek legal counsel any time a resident requests an exemption to any of the association’s pet restrictions on the basis that he or she is disabled.

Following these two key points are certain to help keep you and your association “out” of the doghouse!

[1] The benefits of an ESA are deemed to come from the animal’s inherent qualities, which include emotional support, comfort, and feelings of safety.