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Community Association Matters


Mar 4, 2020

Ana Rivero: Welcome, welcome to "Community Association Matters". You get to see a name with a face. Finally, and I'm so glad to have you back in the 2020s and new year. So hopefully we'll do a few more of these, podcast vlogs, if you will. And I'm so glad that you guys are back with us and joining us. We have some great new ideas and topics that we're going to be discussing over the upcoming months. And I hope you continue to join us in the future. 

So, as you know, our podcasts are sponsored by Allied Property Group. So Allied Property Group is a full service, condominium and homeowner association management firm. We have been serving South Florida since 2003 so a little bit over 17 years, and we can do onsite and portfolio management. So I hope you reach out to us. our web information and contact information will be available at the end of the, of the vblog. 

Today is interesting because we have Sal from Jurado and Associates. Jurado law. Perfect. Sal and I have been working together for many, many years. And we were just talking about some exciting news.

We've opened up an office in the Fort Myers, Naples area, so now we can service condo through the Southwest Florida corridors. So we're very excited about that. We hope that you guys will, that hopefully this will reach you and you'll be able to contact us and, and learn a little bit about our company.

So, Sal has been working with us for, I don't know how long

Sal Jurado: 10  12 years,

Ana Rivero: Something like that. 

Sal Jurado: Yeah. 

Ana Rivero: We look very young, so I know it's hard to believe, but we really have been working together that long. So Sal, tell us a little bit about yourself. 

Sal Jurado: Yes. My name is Salvador Jurado, of Jurado Law Group. I've been practicing in the area of condominium and homeowners association law since 2006. This is what we do on a day to day basis. We represent both condos. And HOAs.

 I teach a class at the FIU College of Law on community association law. So we are very familiar with, you know, all the trending topics, you know, that are, that are coming up. and looking forward to talking about emotional support animals.

Ana Rivero: And Sal has three boys. 

Sal Jurado: Yes. And they keep me very busy.

Ana Rivero: Well, the reason why we asked you here today is because recently, HUD came out with some new guidelines for emotional support animals and service animals. And that is a very hot topic in not only condominium in HOAs, but also in multifamily and residential properties with landlords.

And, it's been, kind of like the wild west for the last few years. There's been a lot of new areas that have developed and that I think giving people more freedom to have these emotional support animals that I'm sure are very important and do serve a role. But the fear is always, where's that balance? Right? There's the balance between someone's rights and somebody else's rights. So, to start off what do you want to tell us about the differences between what a service animal is and what as, an emotional support animal. 

Sal Jurado: Yes. And that's an important distinction. Before I get into the service animal and the emotional support animal, I do want to read through, what the intent of the HUD laws are. So you have what's called the Fair Housing Act, right. And I'm going to read it verbatim:

The Fair Housing Act states that it is unlawful for a housing provider to refuse to make a reasonable accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling.

So in a nutshell, what that means is if you need an animal to allow you to enjoy your residence, just like any other person kind of thing. Then you should have the right to be able to bring that animal with you into your, into your dwelling. So the rule has been made, it's a good rule. It has, you know, good intentions. But like Ana said, you need a balance, because you do have homeowners that they push and they push and they try to take advantage of this rule. 

So the first question, you know, that needs to be answered is, you know what Ana was saying? Is there a service involved? Or is it an emotional support animal?

And the reason why you want to ask that question first is because you know they are different, and there's different standards that apply to each one. So to get into service animals, a service animal can only be a dog. Okay? It cannot be a cat. It cannot be an alligator. I saw it on the news the other day, which was crazy, but it could only be a dog and it has to be a dog, that is trained to assist, you know, with a disability and it requires training. It's harder. I don't see service animal requests as often as I see, the support animal requests. And you'll see why. So a service animal can only be a dog. And number two, it has to be specifically trained to assist the individual with his disability.

Ana Rivero: Right. Okay. So like a blind person, perfect example, a guide dog helping him with, you know, accessibility to correct different areas. 

Sal Jurado: For example, you know, a dog assisting an individual who's blind. So support animals, that's where, you know, it gets a little gray.

A support animal. It doesn't have to be a dog. It can be a cat. It can be a rabbit. It can be a  miniature horse. The other day I saw on the news, an individual who was claiming a beehive, a storm of bees, was her emotional support animals, which is crazy. Yeah, I've seen it. I've seen alligators, individuals requesting that alligators be emotional support animals.

So it gets a little trickier with emotional support animals. The purpose of these guidelines is to assist housing providers in, you know, what steps should they take? What questions should they be asking? What questions should they be asking themselves? 

And you make a good point. You know, these rules don't only apply to community associations, they apply to any housing provider. So specifically landlords. I represent several landlords and these issues come up just as often as they come up in the condos and the HOAs. So that's the main difference between service and emotional support animals. as we get into this, you'll see that the questions you ask are different depending on whether it's one or the other.

Now, one thing that's important is just because an individual requests that you make an accommodation under the service animal side of the rules. That doesn't mean that he then cannot, if that doesn't work out, he can then ask for permission as an emotional support animal. So it doesn't end like, let's say you determine it's not a service animal. It doesn't end there because it may still qualify as a support animal, allowing him to be able to, you know, have the animal with him. 

Now regarding condos and HOAs, right. The first thing an HOA needs to ask themselves is, do we even have the right to prevent an animal? So before you get into the whole emotional support, animal or service animal, the first thing a board needs to determine is, do my documents even give me the right to say no, because if it's a set of documents that are silent, they don't say anything, then you're not even in the position to even say no because board's powers are limited to Florida law or whatever's in the declaration 

Ana Rivero: So quick question along those lines. a lot of documents may be silent as to pets. Some have guidelines as to what and not, implies that a pet is allowed, but it's also usually under a rule section of the governing documents. So when a board decides they want to change the rule. How does that impact this? 

Sal Jurado: Okay, so good question, so if you have a set of rules that are recorded and they're part of the declaration. If you're gonna change what the rule says, if it's a material change, you're going to need a vote by the owners, and it's usually a two-thirds vote for passing. If the board is simply passing a rule to help clarify what the intent of the declaration is, so for example, let's say, the declaration, you know, a good example is, you know, if the declaration says, you know, no dogs allowed, right, but we're going to pass a rule that if the declaration says no dogs allowed unless you get our approval. But we're going to pass a rule that clarifies the steps in order to get our approval right. You're not really changing what the declaration is saying. So in that situation, the board itself can simply just pass a rule at a board meeting. You don't need a membership vote, but if, if you're going from no pets restrictions to 100% pet restrictions there, you're changing, you know, the intent of the declaration. So there you wouldn't need a membership vote. 

Ana Rivero: So this is the clarification or where we're seeing the biggest problems is in condos then have the no-pet rule. Correct. Cause the ones that have a pet rule, you can maybe ask that they show vaccines or that they provide proof that the animal is not going to be a danger or that they're going to be in a leash.

You can modify some of the rules governing the actual animal, but in a no-pet rule or in a condo that has it in their documents, that there can be no pets. How does this affect them? 

Sal Jurado: Meaning a condominium or their documents say no pets allowed? Yes. So the whole, the whole purpose of these, of the Fair Housing Act is to tell homeowners, I mean, housing providers, condos, hos or landlords, the purpose of the FHA is to tell them if you have a no pet policy. Right? You need to make a reasonable accommodation and allow the individual to have a pet if he meets certain criteria and it goes back to every individual has the right to use and enjoy their dwelling. And if the individual can establish that the only way he can use or enjoy their dwelling is with my dog or with my cat, then you have to make an accommodation. So this definitely applies to any association that has a no pet policy. It doesn't matter what your declaration says. Your declaration can be black and white and say, no pets allowed. It doesn't matter. It's a federal law. And 

Ana Rivero: It supersedes, I guess, condo documents, correct? 

Sal Jurado: Yes. So if the condo documents say no pets allowed, but the individual requests a reasonable accommodation, meaning they're asking, please make an exception for me based on this disability that I have, as long as they follow certain steps, they have to grant that request. 

Ana Rivero: So let's talk about that. What are the certain steps that they have to follow, or what are some of the things that we can now do that we maybe weren't allowed to do before?

Sal Jurado: Correct. A couple pointers, just practical pointers. You cannot, many, many documents allow you to charge what's called the pet fee, right? Many landlords, you know, require a pet fee, right? You cannot charge a pet fee to either a service animal or an emotional support animal. So let's say the individual, you know, those, what they have to do to get, you know, their, their animal qualified at that point. You know, they're not even considered an animal, but by law. Got it. Okay. I'm sorry. They're not considered a pet. Right. But they are a right. 

Ana Rivero: So along those lines, can they do a security deposit or is that no? 

Sal Jurado: No Feeing. Yes. It's considered a pet fee. So a mistake that landlords and boards make often is, you know, they charge a pet fee after you get approved. Okay? You got to prove. But we need a pet fee to protect the common, you know, the common elements or common areas that's not allowed for the, for the emotional support or, or service animals. and then like I said earlier, you know, these assistance, animal assistant assistance animals are not considered pets.

So. The no pet policy does not apply. That's the way the law is written. Now, if, if for some reason the animal they're requesting, they can't provide, you know, a letter from a doctor, they can provide documentation justifying the need for it, then it is considered a pet and the no-pet policy applies. Okay.

Well, that's a simple way. Okay. 

Ana Rivero: Looking along the lines of the letter from a doctor. What we see a lot are certifications on the internet or a doctor. We're in Florida and you get a certification from a doctor, from another country or from Wyoming. Does that still count? 

Sal Jurado: You know, that is the area that I have the most issues with and in these HUD guides, first of all, these HUD guidelines, the set that came out is dated January 28th, 2020. It's about 15 pages long and it walks you through the analysis and it does touch upon that subject, regarding what's called documentation from the internet and they don't really answer the question., but they do give you some recommendations. So what the guidelines say is if, if they show up with, with a random letter from, like you said, Wyoming, right? And it's a doctor that is not really treating them. they simply just pay the fee and they got the letter online. That's not good enough, but that's what they say. That's not good enough. But then, but then they go on to say, you know, there are many legitimate healthcare services that do online evaluations. So if it's a, if it's legitimate and if the doctor is treating them and they are a patient of the doctor than it is okay. So we get into the whole, you know, is he really a patient or not?

Now, one thing I've done in the past. And I don't see an issue with this is I've actually called the doctor's office and I've asked them, is this individual a patient? And that's it. I don't, I'm not allowed to ask anything regarding, you know, what the disability is, you know, the underlying conditions, cause that's all protected. But the way I see it is if I get a letter from a doctor telling me he's my patient, right? There's nothing wrong with me calling the doctor's office. Hey, I just want to confirm that this is your patient. I've done that several times. And believe it or not, most of the time, I actually, pretty much all the time, they have confirmed that the individual is a patient at that doctor's office.

So that's one way to weed out, you know, the random letter from Wyoming. 

Ana Rivero: Okay. 

Sal Jurado: So that's, that's what they said about the doctors. 

Ana Rivero: There's, there's some, there's some things. So hopefully that will strike a little bit of fear in anybody who wants to do something fraudulently. 

Sal Jurado: Yes,  yes. And you bring up a good point. The purpose of these guidelines is not only to assist, you know, the condos or the landlord, but also the individuals who really do need an emotional support animal because. There's been so much fraud in this area that many of the housing providers, you know, are jaded. They really don't believe you. So, you know, they jumped to conclusions. But now at least the individuals who really do need, you know, a support animal, they know what they need to provide, and they know that landlords know what they need to provide. So it should make it easier for those individuals. 

Ana Rivero: What are some of the things that they ... 

Sal Jurado: so these guidelines are, they're broken down into, into service animals and then into, you know, support animals.

So. Let me walk through the questions. We have several questions. Okay. So these are questions that we can ask. 

Yeah. These are questions that you can ask and then more important. These are questions that you should be asking yourself when doing your analysis. Okay. So for, for service animals, first of all, it defines a service animal as any dog that is individually trained to assist the individual, what we discussed earlier.

Okay? So if you get a request. for a service animal, the first question you need to ask is, is the animal the dog? Okay? If it is a dog, then you move on to the next question. Okay. If it's not a dog, let's say you're out of service, but he can still try to get that animal in as an emotional support animal.

Okay, so the first question you want to ask yourself is, is it a dog? No. If it is a dog, the next question is, and I'm going to read it. Cause if they wrote it verbatim, is the dog readily okay? Is it readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability?

So first you ask, is it a dog? And then he's a trained okay. And is trained to do work to assist that specific disability? The blind individual is a perfect, is a perfect example. Okay. So 

Ana Rivero: in other words, if something is obvious per se? 

Sal Jurado: Yes. Okay. Yeah. So if the answer to that one is yes, then it's service time, then you have to give them, the term is a reasonable accommodation, but all that means is you got to let him have the dog.

Ana Rivero: And I think for, at least from the board side, I don't think any board member has had an issue with service animals. The issue has come in with the,

Sal Jurado:  Correct. I agree 100%. now you, you made a good point because there an issue as to what is a readily apparent, disability of an individual who's blind is easy, you know, but, you know, I've dealt often with PTs, I mean PTSD, right?

Which you don't know. they can tell you they have that, but as a, as a manager, as a board, you don't really know. Yeah. So then, they defined, readily apparent, you know, as individuals blind, a dog pulling a wheelchair, you know, so on and so forth. now if, if the answer is no, like, I don't know, like we go back, is it a dog?

Yes or no? Is it trained to assist with that disability? Yes or no? If it's a disability that's not readily apparent, you don't know. Then you go into the next couple questions and they are, is the animal required because of a disability? And then what work or task has the animal been trained to perform?

Okay? You are not allowed to, you're not allowed to get into the specifics. Like if, if a doctor writes a letter. The, because of the HIPAA laws, they can get into like the diagnosis. But what I often see is, you know, the individual has a disability, you know, the individual needs this specific dog to assist them with the disability.

In my opinion, that's enough. As long as you know, you're able to verify that the doctor did treat that patient. Okay. Which is what, which is what is, which is what I said earlier. Okay. So then service animals are, are, are, are easier. 

Ana Rivero: But before you go into service animals real quick, before, I believe that miniature horses were allowed to be a service animal.

Is that, no longer. 

Sal Jurado: It's funny, the new guidelines do not talk about the miniature horses. So, you know, I've talked to other attorneys about the miniature horses and everyone's split, you know, some say. If the new guidelines don't mention it doesn't apply anymore, right? Some individuals say, yes, it still applies this.

This is just like an amendment to what was there before. So I know it. I would say yes, it's, it's still, it's still in play

Ana Rivero: Interesting.

Sal Jurado: But I still haven't had the miniature horses come up yet. They're all gonna come up many times, but not, 

Ana Rivero: but I thought it was interesting that they did not mention it vs before it was specified.

Sal Jurado: So. Correct. Correct. 

Ana Rivero: Moving onto emotional support 

Sal Jurado: Regarding emotional support animals. it gets into the questions. For the emotional support animals. 

Ana Rivero: And again, these are questions that we as either board members, managers, or landlords are asking ourselves regarding the applicant.

Sal Jurado: Correct. And then it gets into, you know, what the doctors, when you can ask the documents and all that. So the first question is. Has the individual requested a reasonable accommodation, which basically means kind of, kind of have the animal, that is asked to get or keep an animal in connection with a physical or mental impairment or disability?

So the first, the first question is, you know, have they even asked, you know, now one thing that's important is the request does not have to be in writing. It could be verbal. I've had many managers know they didn't ask for it in writing. It doesn't matter if it could. It could be verbal. Now, if I were to represent, you know, a homeowner seeking a reasonable accommodation, I would recommend that they do put it in writing.

Just because it's all, it's clear to everyone knows specifically what you're requesting. Okay. There's, there's no confusion. okay. So if the answer's yes that they have asked, then you proceed to the next question. okay. And the next question is, does the individual have an observable disability or does the housing provider already have information?

Giving them reason to believe that the person has a disability. So you know, if the individual is blind, he's in a wheelchair. Those are readily apparent disabilities, right? If it's a mental condition or emotional condition, that's where it gets. Tricky  

Ana Rivero: You have a tenant that perhaps is former military and you know that you know what?

Just from conversing with them or something that they wrote in the application, then that also is considered correct. Previous knowledge. 

Sal Jurado: That situation does happen though. It happens not often, but it does happen. Then it gets into, you know, the difference between the observable and the non-observable disabilities.

And it gives you examples, you know, blindness is for the visible ones. And then it gets into, you know, the mental conditions for them for the non-visible is all right. So if, if it's not readily apparent, if the individual has a disability, you move on to the next question. has the person requesting the accommodation provided information.

The reasonably supports that the person seeking the accommodation has a disability. That's where we get into if they have a mental issue or if they're former military and they have PTSD, you know, how they provided, you know, documentation supporting their claim. and that's where, you know, what I normally see is, you know, that the letter from the doctor and you can't, You cannot request the specifics of how he's been treated or what it is. But if the doctor gives you a letter like I said earlier, that says, you know, John DOE has a disability. He needs a dog or a cat, you know, to assist them with his condition. My personal opinion, that's enough. Okay. Like I wouldn't take the chance of denying him and had an issue with her.

Another thing, if you, if you improperly denied individual, you know that they can report you to HUD and even dealing with HUD, you know? Right. Yeah opens up a whole new can of worms... 

Yes. a whole new can of worms.  

Okay. Now then we get into.

Ana Rivero: And that was there before. I think right up until now, nothing's really changed. Nope. 

Sal Jurado: There's not, the new guidelines don't really change. , what attorneys were doing before or managers doing before. It just, it just help. It helps. The managers will set up a set of best practices on what they should be asking themselves and.

What information they can be requesting from individuals. Like for example, for example, you know, I've seen associations have like a form, like a preprinted form that says, you know, name of the doctor, day of treatment, you know, describe the condition that you have. And then it has to be notarized. You know, that they're very clear that that cannot be done.

You cannot require, you cannot have preprinted forms. You can not require the doctor to state under oath, you know, this is what I'm requesting. Right. It cannot, you cannot require that anything be notarized. So that is a change. Cause they came up very clearly saying, you cannot do that. 

Ana Rivero: interesting.

Sal Jurado: Yes. So okay. The documents from the internet. Okay. So then you move on to the next question. How does the person requesting the accommodation. Provided information, which reasonably supports that the animal does work, performs tasks, provides assistance under, provides therapeutic emotional support with respect to the disability.

So we go back to the letter, you know, once, once you get a letter from, whether it be a medical doctor or a psychologist, psychiatrist, you know, that States, you know, the individual hasn't had a disability. He needs this animal. At that point. My position has always been you grant the reasonable accommodation, but there are exceptions.

You know, I've had situations where the board is concerned that the dog is, dog is aggressive or too aggressive animal, right? Which is a tall, which is a tricky situation because you know, what the guidelines, what not this set, but what the former set of guidelines stated was that whenever you have an animal that's considered a threat, you know, you need to base your decision on facts. Not a hunch. It can be based off of, you know, I think that dog might be aggressive because a it's a pitbull

Ana Rivero: Should have bit somebody, you are shown aggressive tendencies. 

Sal Jurado:  Aggressive tendencies. Exactly. And then what pit bulls, you know, pit bulls are illegal in Dade county they come, right? Right. this supersedes the Dade County law. So just because the individual has a pit bull, right? But this way, even if the condo docs say no pets, even if it's a pit bull and there's a law that says no pitbull such as Dade County, this law, the FHA supersedes all that, right? So if the, if the individual requesting the animal provides a letter from a doctor, provided that the dog is not aggressive and the board has no reason to believe it's aggressive, then you have to make an exception or you set out to have the pitbull, 

Ana Rivero: Let me ask you a question because I think what also tends to happen is that you have a no pet policy and you have an applicant, they come in, they say they have no pets on your application, but they move in two weeks later, a week later, there's the dog, and all of a sudden, so you send a letter and you say, Hey, this is a no pet. You know, condo, all of a sudden they come back and they're like, well, it's an emotional support. And yeah. So 

Sal Jurado: That happens a lot. 

Ana Rivero:  Oh, it happens all the time. And I think that that is, is a stickler for board members because they feel that they were lied to and should be reason enough to either tell that person will, you're no longer approved, or you have to get rid of the animal.

Yes. So how does that, 

Sal Jurado: They address that? They address that and they're very clear that the request can be made at any point in time. They can even be made after. For example, I represent a lot of landlords, and let's say the landlord has a no pet policy, right? The guy shows up with a Great Dane. Huge dog, right? So. I send the tenant a seven-day notice to cure, which is what the law requires. You have seven days to get rid of the dog. You know, our lease says no pets. At that point, after I've sent him the seven-day notice, then that's when for the first time ever, well, emotional support. Right. So the new guidelines, they're clear in that that request can be made at any, at any point in time. Okay. So just because they asked for it at a later point in time and they're not upfront with it at the beginning, that doesn't mean you can say no. You still have to go through the analysis, you know, is if it's a service animal, you know, is it a dog? You know, are they trained? If it's an emotional support animal, did they give me documentation supporting the disability and the need for the dog to assist with a disability? Right. It's still the same. 

Ana Rivero: Is there anything else that we haven't covered that they've added or that they might, listeners? 

Sal Jurado: Let me see. There's a, let me see. Yes. they do have a new section on, on unique animals, right. Which is maybe to deal with, which is mainly to deal with the alligator and the, and the swarm of bees issue. You know? So. With regards to unique animals.  I'm just gonna read it. If the individual is requesting to keep a unique type of animal that is not commonly kept, then the requests, then the request store has a substantial burden of demonstrating a disability-related therapeutic need for the specific animal.

So the, you know, the individual has to, prove why a swarm of bees is what I need. Interesting. Clarify. It clarifies that. 

Ana Rivero: I wonder what could be the possible argument. I'm sure that had to have been some sort of logic behind that. The alligator I saw, and I think the gentleman had him from when he was, you know, a baby. So maybe a while down and we'll can be, you know, friendly. 

And it's funny because I recently, my mom was recently injured and she stayed at a rehab place and they had. It’s not a service animal, but they have therapy dogs going into the nursing home, to help the patients feel better. And I think we're seeing that also with hospitals now. Yeah, totally. I know it's a different animal together as far as, you know, there's a big difference in the hospitals, but I think it's interesting how there is truth to animals being. 

Sal Jurado: The law has a good intent, right? Because like you said, there are individuals who do need an animal to assist them with their life and that I totally get that. The problem is that you have those bad apples, right, who don't really need it and they just want to get around my pet fee or they just want to get around on a no pet policy. But it's taken advantage of the FHA. 

Ana Rivero: And I think what's important is for board members and landlords to understand that these provisions are very, you know, HUD is a very serious, they could claim discrimination. That's a very serious accusation and can have tremendous, liability potential for the association as a whole. So they should be very careful. And obviously we always recommend when we get a request like that, let's send it off to the attorney and have the attorney review it. And like you, yourself said, you called to follow up with the doctor and it's always better that the attorney handle that and don't you get personally involved, you know?

But, I'm glad to see these out. I hope that it does help. with the situation, and I thank you for coming out and helping us learn a little bit more. And thank you for sending that to me. I appreciate it. 

So for our listeners out there, and you want to share a little bit about maybe your website or phone number where they can get ahold of you if they wanted to get more information, 

Sal Jurado: You can visit our website at www.juradolaw.com, or you can call our office at (305) 594-4050.

Ana Rivero: And he told me that he does visit the Fort Myers area, so he also does, I guess, work throughout all of Florida. 

Sal Jurado: Also Palm Beach, Broward Dade, Monroe and I do some work in, Collier County and Lee County as well. 

Ana Rivero: Perfect. And of course, you can reach us at www.alliedpropertygroup.net  or give us a call at (305) 232-1579

It's nice to meet you all.

Have a great day. 

Thank you.