Melissa Doolan, Esq. shares her insights in this featured article, republished from HOAleader.com.
A 30-unit Florida condo has—allegedly—three “fraudulent” emotional service animals in the community. The evidence? Online medical experts provided certifications for two of the animals; the third owner is ignoring board outreach to verify the need for the accommodation.
The condo’s manager reached out to an attorney, who says it’ll cost $20,000 to take on the cases against these owners.
Let’s unpack this issue, starting with the claim of fraud. Then we address whether there’s anything a board can do to enforce their no-pet rules without spending a fortune.
Three Cases, One Not the Same
This situation is really two scenarios, the first being the two cases with online certifications, and the second being the owner who hasn’t responded to board outreach.
Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years, starts by asking why this reader is jumping to the “the certifications are fake” conclusion. “How do they know they’re fraudulent?” she asks.
“The U.S. Department of Housing and Urban Development regulations issued in 2020 said that documentation from the internet by itself isn’t reliable,” explains Doolan. “However, licensed care provided remotely is legitimate. So if you get remote care, that doesn’t mean it’s not reliable. You have to look at the facts of the letter that was received, where it came from, and what it says.”
It’s certainly acceptable to dig into the provider of a certificate. “The two cases aren’t guaranteed to be fraudulent if the certification is online,” agrees Molly Peacock, counsel at Rees Broome in Tysons Corner, Va., who has represented condos and HOAs for 17 years. “But Virginia and the federal government have come out with updates to fair housing law that make it a little easier for the victims of fraud, condo associations for example, to overcome the fraud or rebut it. Or to at least ask questions to determine whether the certification is fraudulent.
“There’s more you can do now,” she adds. “It’s fine for a lay person to do an internet search to understand whether a certification is fraudulent or not, and I would recommend they look at that. Take the name of the provider of the certification and do a little research.”
Jessica Ruiz, LCAM, CMCA, the Miami-based vice president of management in Florida for AKAM who oversees a portfolio of about 20 condos and HOAs, says this situation is tricky—and that it’s happening in most buildings she oversees. That’s why boards need legal help.
“In Florida, there are steps that need to take place for an emotional support animal to be considered legitimate, and that includes a prescription from a licensed health care professional,” she says. “To avoid disputes and lawsuits, associations should have their legal counsel prepare clear guidelines on what they can enforce, what they can ask, and how they can obtain information. And then they should follow their legal counsel’s recommendations.”
California also allows you to ask appropriate questions, states Jasmine F. Hale, CCAL, a partner at Berding & Weil based in Walnut Creek, Calif., who advises condos and HOAs throughout California.
“Both federal and state fair housing laws, at least in California, do provide disabled persons the ability to request a reasonable accommodation,” she explains. “About two years ago, California amended our statute on this issue specifically. I think there were a lot of people who abused online doctors. You pay $50 to have someone say you’re disabled, and you get your third dog.
“So the legislature modified the law to state that the health care provider must have a treating relationship of at least 30 days with the patient,” she notes. “Does that absolutely put the brakes on these cases? No, but there are now some structural hurdles that have certainly lowered the number of requests I’ve seen.
“Even if we’re talking on the federal level, I’ll advise clients that if the owner has the appropriate documents, the accommodation should be approved,” says Hale. “But if there’s a concern over the documentation, the association does have a right to reasonably request information, though it can’t ask for medical records and the diagnosis.
“They have a right to ask certain questions, but not to ask: ‘Are you really disabled?’” she explains. “I’d caution a board from thinking these are fraudulent because they may just not have been appropriately substantiated.
“The takeaway is that, a lot of times, it may feel that someone may be gaming the system,” notes Hale. “But that’s not for us to decide. The board has to say: ‘Did they have the records?’ And if the owner’s request doesn’t require a fundamental reordering of the association’s operations, this person is likely entitled to the accommodation.”
The Third Situation? Not OK
All our experts say the third owner is a different kettle of fish, and that the board has a stronger basis to act.
“I want to make sure there’s been a documented process communicated to that owner using certified mail, email, and even hand delivery that creates a timeline of how often the board has communicated and what has been communicated,” says Ruiz. “Eventually the association will have to make a decision on whether to transfer this to legal counsel to proceed against that owner.”
Peacock agrees on the paper trail and that enforcement is certainly an option. “I think the board needs to make sure their record is good in trying to reach out at least twice to the property address or in some logical way to reach the owner,” she explains.
“Then if the owner is spotted with an animal again and we don’t know it’s an emotional support animal, the board should send a violation notice,” recommends Peacock. “If we’ve tried to determine whether it’s an emotional support animal and received no response, we can proceed with rules enforcement.”
Doolan also considers this situation different from the others. “If the board is trying to reach out to do this interactive process to say, ‘Let’s talk about what you need,’ and the person isn’t responding,” she says, “the association can move onto the next step, which is enforcement.”
That pre-violation process is vital before you act. “California and the federal government require parties to engage in a good-faith interactive process,” explains Hale. “We need to have the legally allowed records to substantiate that the owner is entitled to this. If they ghost us, the association should provide reasonable follow up.
“The association might say, ‘We’re asking for information we’re entitled to ask, and you’re not providing it. If you continue to not respond, we’re going to assume you don’t have the documentation to support this as a reasonable accommodation and proceed with an enforcement action,’” she explains. “But they’ve got to go through a few of these followups. And the burden is much higher on the housing provider than the party requesting the accommodations.”
That Cost Estimate Isn’t Outrageous
Though it may have made you gasp, a $20,000 legal bill to handle three fair housing matters doesn’t cause the same reaction among our experts—not even the nonlawyer of the group.
“The reasonableness of the cost depends on what you mean by ‘solving the problem,’” says Ruiz. “If someone isn’t being communicative, we have to send them a demand, and there will be legal fees associated with that. What are the other two owners doing? We don’t have all that information.
“On the flip side, I have experience with a unit owner who came against the association because he was forced to adhere to a no-pet policy, and it was a legitimate emotional service animal,” she adds. “They had to pay a settlement fee that I think was about $20,000. So that $20,000 cost to handle these situations doesn’t surprise me.”
Ditto for Hale. “That not only seems reasonable but on the low side,” she says. “Fair housing claims are very expensive.”
What Do You Really Want?
It may not be necessary to wage all-out war to get these issues resolved—at least from the start.
“An attorney can and should send a letter before the board goes down this path to maybe try to resolve this without a lawsuit,” states Doolan. “Maybe they can get it resolved for a lot less.
“The interactive process HUD advises would help,” she adds. “Maybe asking for different documentation and having the attorney help with that wording might resolve those situations without going to court. Boards too often try to resolve things without going to an attorney and end up spending more money than if they’d have consulted an attorney in the first place.”
Peacock agrees. “To take someone to the mat on a fair housing issue of any sort, regardless of the merits on either side, the price tag goes up quickly,” she explains. “So what do we really want? We want a good community where an animal isn’t causing problems, biting someone, leaving waste, or damaging things. So do we really need to spend $20,000 on a principle?
“They could,” adds Peacock. “Or if there are problems with the animal—whether it’s certified or not, it’s not allowed to cause problems—I suggest attacking the symptoms. The board can say, ‘Hey, your dog bit someone,’ or ‘Hey, your dog left this behind.’
“If the board hasn’t done the full level of good-faith attempts at rules enforcement prior to filing suit, they need to do that,” she notes. “If they’ve done all that, they’ve pursued excellent rules enforcement, and rules are getting flouted, and other owners are bothered at the flouting of the rules, then the board will likely need to sue the owners.”