Animals and service/support

Started by AnitaC5 • 35 replies • 5075 views

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AnitaC5 (South Carolina)
Posts: 16

Posted:

When I search “Service Animals” on here I see a lot of quotes from the ADA. At one point I thought ADA made the rules.

“Beginning on March 15, 2011, only dogs are recognized as service animals under titles II and III of the ADA.
A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.”
I also thought training alone made a service animal. Please let me share (get off my chest) the ordeal we are going through.

YOU are on a HOA (HOME OWNERS ASSOCIATION) forum. ADA makes sure people with disabilities have access. FAIR HOUSING……That is who you will hear from after a complaint.

Our small community, 6 units, has a resident (past partner of the HO who spends 1 month every 6 mo at home) He traveled a lot for pleasure. He bragged to the HOA president that he got tired of paying a pet sitter, so he got his dog registered as a service animal so hotels can no longer turn him away. When at home he walked his dog off leash and did not pick up after it. Letters were sent animosity began. He then brought in a roommate (mid 20’s) with a dog. Both dogs allowed to run off leash, or if leashed, at the end of leash, lunging and barking. The board requested removal of the 2nd dog. He claimed service animal status 1st and the 2nd was a pet. Another 6 months roommate brings her pit bull. The board again went to the HO (he was home) about the new dog and was told it was sick and would be rehomed. This dog was aggressive, and barked incessantly. The layout of our complex, residents from 2 units (Ours and the President’s) must pass in front of theirs to get to the parking lot.

A month later HOA had our attorney contact them. Resident informed the pit bull would be registered as a service animal. We have done everything we were told to do. 3 months later paperwork was provided to our lawyer the pit was registered. By our lawyer and the magistrate advice the board implemented a fining schedule. We again were told to keep records, to document everything. May-(with advance notice) The board asked for vet records and city license for all 3 dogs. (City licenses expire end of June) This request went unanswered.

Living conditions worsened. Roommate’s boyfriend (with another roommate) moved into the unit downstairs. They (always 3-4) moved around in a pack. In 3 weeks, 3 board members cars in got flats in our parking lot & my car got a dent. Security cameras were installed. Police were called almost weekly for a while from residents related to the board and from them. Police told me to keep records. Document everything. Roommate constantly harassed me and my husband. (Sorry to say he usually blew up back at them) The dogs continued to pee on the sidewalk, bark and jump. She about runs over any of us in the parking lot. Once the Police were in our unit regarding a theft. As they returned (husband, Officer and theft victim) to the parking lot, roommate called my husband a POS, the officer heard, she said He harasses me. It was miserable. ON and ON and ON. Then all of a sudden roommate starts screaming about a subpoena.

About 3 months ago Fair Housing showed up. The violations for not providing records had gone to a lien as well as one for the pit being over 30 lbs. We were informed they do not have to provide vet or city records for an Emotional Support Animal, nor do the dogs have to be trained to DO anything. They claimed harassment due to their disabilities. We asked about us being harassed. Having to step over dog pee, being called names, being screamed at….etc. She said put it in your response to our agency. On the way out to the parking lot we stopped to show the sidewalk bleached out from urine tat WE have to step over. One investigator commented in the white dog barking, about to go thru the window. Her mouth literally dropped when I said ...yeah, that's the service animal.

We continued to talk in the parking lot, then they went to their car. Right then “resident” strolls by, “hahaha! Did you get your subpoena”. My husband brought the agents back. She told him to play nice too.

Since then you could hear crickets chirp around here. I had not seen Roommate once this entire time. Recently Resident has begun seeking someone to rent a bedroom. Roommate became engaged and “moved in” with her boyfriend.

I honestly thought through all the records I kept, they would have seen the fraud. Since it was even said to 2 people, but they got Dr notes, the board is in violation. Roommate with her ESA “stay” with boyfriend but don’t live there. HOA can’t ask their landlord for her on the lease because she doesn’t live there. The 1 “pet” of course lives with upstairs resident, roommate does not bring her pet into the rental unit because she lives upstairs, although boyfriend has begun to walk the 2 dogs. Resident provided the City license dated July 9 to FH. He said he tried to provide it, but our lawyer didn’t want it. Even the FH Agent said he probably didn’t provide it to board out of spite. And still hasn’t.

Last night, THE day FH passed their finding, there she is, roommate, walking right by me laughing her head off. It has started all over again. Even with their Emotions being Supported by their prescribed Animals and The Fair Housing Authority backing them, the harassment has begun again.

They are protected. The dogs, as nuances as they are, cannot be fined. The board has no say what so ever. At one point the board thought about making sure their HO’s insurance was enough to cover any incident involving these dogs, now they are Emotional Support Animals, and NOTHING can be said.

At this point I don’t know what will happen with the lien since all 4 violations were balled into 1 lien. The board can’t say violations have been waived for 2 dogs, only the 1 pet violation is withstanding. The association has 1 unit that has not paid HOA in 3 years. Legal fees for this and the animal ordeals have put us further in the red. We have had to put off repairs to the property, It will, of course, cost more to make these repairs later as rotting continues. HO has his unit on the market, wouldn’t keeping up the curb appeal benefit him?

If I had the money I would buy them out or leave myself, but I don’t, so here I am being harassed again by this woman. Fair Housing said they don’t want to be here, then why didn’t she and her boyfriend move somewhere else? Because here, they are protected.

I may get in trouble for this rant, since my initial questions were posted here and used against me.

Good luck with fair housing in your community.

SheliaH (Indiana)
Posts: 6,964

Posted:

I read another story where someone noted that part of the reason HOAs have rules like this is because of ignorant and irresponsible dog owners (like the folks you describe) whose critters make life miserable. I suppose the next thing that'll happen is one of these dogs will bite someone and then the owners will get sued. Which would be great, except the victim would probably sue the HOA for not enforcing the rules! Sometimes you can't win no matter what you do.

(this is also why some people go to extremes and either shoot the dog or poison them - PLEASE DON'T DO THAT - going to jail over stupidity is just that)

Anyway, could you talk to your local health department about the doggie poo? cities have laws requiring owners to pick up after their pets because it's a health hazard (attracts rats, can spread diseases to other animals and even people if they track that crap into the house.)

You've already filed the lien and I know some people say it's not a good idea to lien a house for fines - next time, fine them for any repairs to the common area (that may have more bite if these people try to scream about the unfairness of it all).

My understanding of the ADA is that the animal has to be trained to do something in order to be called a service animal (I know these "emotional support dogs" are an emerging issue and don't know what the ADA says about that). You could file a lawsuit in small claims court and perhaps the judge will compel them to provide proof they're bonafide service animals. If there's an appeal process for the Fair Housing agency, do it and get the neighbors to testify - maybe that will convince them these people are con artists. Good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By SheliaH on 01/15/2014 1:35 PM
My understanding of the ADA is that the animal has to be trained to do something in order to be called a service animal (I know these "emotional support dogs" are an emerging issue and don't know what the ADA says about that).

Unfortunately, the ADA and the FHA define service animals differently (even though they're supposed to be part of the same government). When it concerns housing (and HOAs) it's the FHA's definition that is the operative one.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

precisely

ADA = applies to 'public accommodations'

FHA = applies to ALL housing

ps. the 'support animal' situation is similar to the 'handicapped vehicle placard' ~ get a doctor's note and you are good to go

JohnB26 (South Carolina)
Posts: 1,569

Posted:

How Should a Condo Handle Emotional Support or “Prescription Pet” Cases?

by: Lindsay Raphael, Esq. December 19th, 2013 | 7:00 AM

Last week I wrote about how associations are receiving more and more requests to have emotional support animals in condominiums which have no-pet policies. In general, condominium boards must enforce their governing documents against all unit owners and occupants. However, there may be an exception to a no pet restriction when a physician prescribes the occupant an animal to relieve physical and/or emotional disabilities.

If a board of directors receives a request for a reasonable accommodation which is requesting that the association make an exception to its no pet restriction, the first step the board should do is determine whether the requesting party is considered disabled under the Fair Housing Act. A person is considered disabled under the federal and state laws if he or she has a physical or mental impairment that substantially limits one or more of his or her major life activities, such as the ability to work, walk, talk, see and hear. Being able to substantiate one’s disability is critical in requesting a reasonable accommodation.

When a person requests the association to accommodate his or her disability by waiving the no-pet restriction, the request should:
1.verify the condition that substantially limits one or more of the person’s major life activities;
2.describe the needed accommodation; and
3.demonstrate the relationship between the person’s disability and the need for the requested accommodation.

The foregoing information should be submitted in writing by the requesting party. In addition, the requesting party’s treating physician specializing in the field of that particular disability should provide a statement that the individual suffers from a disability and should specifically list what those major life activities are that are substantially limited and how the animal will afford the requesting party an equal opportunity to use and enjoy his or her home. The requesting party does not need to disclose the details of the disability nor provide a detailed medical history.

If your association has been receiving requests to make accommodations for emotional support animals, I suggest that the board create reasonable rules and regulations regarding such emotional support animals to be applied uniformly to all occupants which:
1.lists the documents and information the requesting party must submit to the board in order for the board to review the request for a reasonable accommodation;
2.requires that the prescription for the animal must be submitted by the occupant’s treating physician specializing in that particular disability; and
3.addresses rules such as walking animals, requiring the animal to be on a leash when outside the home, requiring the owner to clean up any pet waste in the common elements, require that the owner provide the association with the animal’s vaccination documents, prohibit the animal from being a nuisance, require the pet owner to be responsible for any damage caused by the animal, etc.

The association is prohibited from charging an occupant a fee or damage deposit for their emotional support animal. The association also cannot impose any breed, size or weight limitations on the animal. The animal must be permitted in all areas of the association’s property where persons are allowed to go (which includes without limitation the elevators, pool area, common elements, recreational facilities). The association cannot require the emotional support animal to utilize different entrances and exits to and from the condominium.

While it is imperative that the association take the proper steps to determine if it must grant or deny an accommodation request, it is also very important that the association does not unreasonably delay such decision. An unreasonable delay may be considered a denial of the accommodation which could give rise to a discrimination complaint. Ignoring or misinterpreting the law could result in a lawsuit being filed against the association for discrimination. Please contact your attorney if you have any questions about whether to grant or deny an accommodation request and to prepare the appropriate application for a reasonable accommodation request.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JohnB26 on 01/16/2014 7:18 AM

How Should a Condo Handle Emotional Support or “Prescription Pet” Cases?

by: Lindsay Raphael, Esq. December 19th, 2013 | 7:00 AM

If a board of directors receives a request for a reasonable accommodation which is requesting that the association make an exception to its no pet restriction, the first step the board should do is determine whether the requesting party is considered disabled under the Fair Housing Act. A person is considered disabled under the federal and state laws if he or she has a physical or mental impairment that substantially limits one or more of his or her major life activities, such as the ability to work, walk, talk, see and hear. Being able to substantiate one’s disability is critical in requesting a reasonable accommodation.

When a person requests the association to accommodate his or her disability by waiving the no-pet restriction, the request should:
1.verify the condition that substantially limits one or more of the person’s major life activities;
2.describe the needed accommodation; and
3.demonstrate the relationship between the person’s disability and the need for the requested accommodation.

The foregoing information should be submitted in writing by the requesting party. In addition, the requesting party’s treating physician specializing in the field of that particular disability should provide a statement that the individual suffers from a disability and should specifically list what those major life activities are that are substantially limited and how the animal will afford the requesting party an equal opportunity to use and enjoy his or her home. The requesting party does not need to disclose the details of the disability nor provide a detailed medical history.

Which part of this is not able to be understood down there in Mayberry?

While there is certainly plenty of evidence of mental disability in this association, it does not sound at all as if any of the parties meet the requirements for being physically disabled.

I must have missed this part; where in the Fair Housing Act does it permits dogs to run loose and poop and pee wherever they wish?

This board and its attorney are in dire need of a testosterone enema. Fire the lawyer, shoot the dogs, tow the cars away, and burn the house down if that's what it will take to get these morons out of your hair.

JoK2 (California)
Posts: 198

Posted:

The little that I know of service dogs, what I do know, is if they are running around with out leashed etc, that could be seen as misuse of a service animal and with pictures or video's you may be able to approach the ADA, SPCA or the like. Dogs running without leashes is not safe for the people or the dog.

The organizations that trains service dogs are VERY serious about the nature of and care of it's animals, and I would think that if they knew the dogs were not being taken care of to the letter of the law, they may feel it necessary to rescind said service animal agreement.

Curious as to what the proof was exactly? Seems that it would be easy to find an attorney or doctor who can provide whatever piece of paper is necessary.

AnitaC5 (South Carolina)
Posts: 16

Posted:

Thank you for your comments. The case is being sent to a state commission. The fair housing agency has stated the board is in violation because we asked for city license and vet records for the Emotional Support Animals and filed violations for that reason.

Service Animals are different, ESA do not have to be trained. All they need is a Dr note and they are protected. They have also provided an online registration which is NOT needed.

[National Service Animal Registry recognizes that you may train you own dog and will supply you with identification to allow your dog to accompany you anywhere you want or need to go.

It's important that your dog is adequately trained to qualify as a service animal. Review the statements below. If your dog meets most of these criteria, simply click the link at the bottom to register your animal.

Purpose: The purpose of the NSAR Public Access Test is to ensure that dogs certified and registered with National Service Animal Registry are stable, well-behaved, and unobtrusive to the public; that you have control over the dog and that, as a team, you do not pose a public hazard.

Dismissal: Any dog that displays aggressive behavior (growling, biting, raising hackles, showing teeth, etc.) or exhibits otherwise unmanageable behavior will not qualify as a Service Animal.

Bottom Line: Your dog demonstrates that he/she is safe to be in public, and you demonstrate that you have control of your dog at all times.] (Roommate had start walking the dogs separately because she couldn't handle all 3 at the same time)

The list goes on to name behaviors and commands that would display the temperament of the dog. I did say they fraudulently certified many of the listed items to receive the registration, but since they don't need registration, it does not matter.

A doctor's note trumps all bad behavior by dog or protected person.

P.S. No Retaliation!

MissyP (Alabama)
Posts: 63

Posted:

Seems the HOA put themselves in hot water over this. First off...How can one place a lien for the dogs? A lien is only for non payment of dues. Fines usually can NOT be the basis of a lien. Unless you all took this person to court, won the suit, and they didn't pay, then a lien may come into play. However, most of the time fines can not be liened for. Something you may have wanted to ask your lawyer. The lien may not be what you think it is for. Plus your HOA has to have an established fining schedule and rules written about dogs/cats allowances. What do your rules say about owning a dog/cat/animal and the punishment of violation? Just having the power to fine for it isn't enough. You have to set a definition of that amount of the fine and establish maximum amounts.

I am not defending your trouble situation. Just trying to let you see where things have gone wrong. The HOA can't enforce rules on a room mate or a renter. They can only go after the owner. It is the owner of the property that you must file the lien or fines against. Otherwise, you have to call animal control or the police on a personal level to address the dog issue. It should not be an HOA issue as then you make you all legally liable for your BOD decisions. Which has seemed to bring you all to court.

The situation should have been handled differently. It's just too late now. Realize that your HOA even though you feel is doing the right thing and is having this annoyance, may not be in the eyes of the law. The road to #ell is paved with good intentions and in HOA's lawsuits... It may be time to stop and re-evaluate the situation. Your lawyer is giving you advice you all want to hear and to pursue. That doesn't mean there aren't other avenues to look into.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

to repeat:

ps. the 'support animal' situation is similar to the 'handicapped vehicle placard' ~ get a doctor's note and you are good to go

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By AnitaC5 on 01/19/2014 6:25 AM

National Service Animal Registry recognizes that you may train you own dog and will supply you with identification to allow your dog to accompany you anywhere you want or need to go.

National Service Animal Registry is not a government agency. From their website, it does not appear that they are recognized by any government agency. They are in the business of assisting people break various rules and regulations regarding animals by issuing certificates that fraudulently purport to be official. I would not look to them for any authority on the subject of service animals.

LarryB13 (Arizona)
Posts: 4,099

Posted:

From National Service Animal Registry website's FAQ's (http://www.nsarco.com/faq.html):

"26. Does NSAR require evidence of my disability to register a Service Dog/Animal?

"All applicants must declare that they are disabled, based on the ADA & NSAR definitions and interpretations. We do not require disclosure of your specific disability for your application to be processed. And we will never voluntarily disclose or provide any of your private information to anyone."

They require no proof of disability. If you tell them you are disabled (by their own definitions) then, by golly, you are disabled.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 01/19/2014 9:46 AM
Posted By AnitaC5 on 01/19/2014 6:25 AM

National Service Animal Registry recognizes that you may train you own dog and will supply you with identification to allow your dog to accompany you anywhere you want or need to go.

I agree. A scam mainly used to bypass animal regulations.

AnitaC5 (South Carolina)
Posts: 16

Posted:

Well that's the predicament we are currently in.

I previously used the HC placard to describe this to the President. (All you need is a Dr. to prescribe it) Although, until the State asked for it, local Dr. did not offer documentation, only the Internet Dr. papers were sent to our Attorney. That was something we asked for all along. We didn't feel an internet - Click here to see if you qualify - Physician was enough. Had they provided paperwork from a local Dr to our Lawyer, the board would have taken it, All would have been dropped then in March last year. As it was they drug their feet and cried discrimination, all the while 3 dogs continued barking and lunging at the end of their leashes etc etc etc. What was the point of more dog violations when there was already a lien on the property.

If you cant file a lien for fines....Why didn't our lawyer advise us differently? That is all he had to do. It isn't like we held him hostage until he filed the lien. @ $250/HR that is almost 2 months HOA fees for a unit. We tried to keep conversations short and correspond by email because he is such a talker. On the other hand, "Resident" would call and talk for an hour at a time racking up the charges. QUOTE!!!! "You cant make us pay YOUR lawyer fees. That's DOUBLE JEOPARDY" Really?? Even though I'm not a lawyer I was in social studies that day, when was that 5th grade?

So now our little community (did I say it is only 6 units/5 still paying) is up a creek. They do not realize if there is a fine from the state, THEIR HOA fees will be going up also.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Anita

Are they paying their dues?

AnitaC5 (South Carolina)
Posts: 16

Posted:

Oh and going after a "renter". The home owner and this person that I call Resident have been in a relationship for +/- 15 years within the last year things between them have soured Resident told Fair Housing he is renting a room. All correspondence with the actual home owner is forwarded to Resident.

Resident is advertising for a roommate to share his 2 bedroom condo.

The girl I call "Roommate" is being called family so they didn't have to abide by the lease thing.

Girl Roommate stays with her fiancé all the time in the adjacent unit, but does not live there, neither does her 1 pet they have claimed all along. Fair Housing said there is nothing to stop her from getting papers on that pet so she can live in that rental unit with both of her dogs. So what is the point of going to THAT homeowner, alienating yet another homeowner. Asking that a girl that doesn't live there, is listed on the lease.

The actual home owner has not responded with the board in over a year. Even though I heard HO kicked out roommate, the State believes what they say.

AnitaC5 (South Carolina)
Posts: 16

Posted:

John - Yes they are current on their fees.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Devil's Advocate food for thought:

They are living the typical lifestyle.

They like dogs - you do not.

Local animal control and/or law enforcement has taken no action (for whatever reason).

Their association bills are paid in full.

Good luck with the judge.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

or:

hire a competent attorney who specializes in CONTRACT LAW

this will cost about $500+ per hour

y'all are incorporated - act like it

one gets what one pays for

ValerieS2 (Michigan)
Posts: 244

Posted:

Curious - is "lunging at the end of a leash" a violation?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

...only if the BOD considers it covered by the ubiquitous 'nuisance clause'

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The lease agreement and terms are none of the HOAs business. If it is not in the rules that one needs to provide a copy of the lease, then the HOA has no business in what someone does involving rentals. The HOA does NOT OWN THE HOUSE. The renters do not have to obey the HOA rules unless it is in the lease agreement between the owner and renter. The HOA is a third party. The HOA can only hold the owner responsible for the rules and dues.

I think the HOA has overstepped its role in this situation. It has no lien rights but maybe for the legal fees incurred or expenses related to any damages. The fines should not be liened on. The court can only make one whole. Fines do not fall into that. Legal and collection costs could. So would not be surpised if the owner or renter can take the HOA to court and win some expenses back.

Lawyers will do what you tell them to do. They do not always tell you the other options. You pay them to file a lien, you get a lien. The owner could fight it once the time comes to sell. You all may want to step back and re evaluate.

Former HOA President

ReneeC2 (Florida)
Posts: 93

Posted:

Here in California, renters have to follow the same rules if they are included in the CC&Rs.

JoK2 (California)
Posts: 198

Posted:

Quote:

Posted By MelissaP1 on 01/21/2014 3:24 PM
The lease agreement and terms are none of the HOAs business. If it is not in the rules that one needs to provide a copy of the lease, then the HOA has no business in what someone does involving rentals. The HOA does NOT OWN THE HOUSE. The renters do not have to obey the HOA rules unless it is in the lease agreement between the owner and renter. The HOA is a third party. The HOA can only hold the owner responsible for the rules and dues.

I think the HOA has overstepped its role in this situation. It has no lien rights but maybe for the legal fees incurred or expenses related to any damages. The fines should not be liened on. The court can only make one whole. Fines do not fall into that. Legal and collection costs could. So would not be surpised if the owner or renter can take the HOA to court and win some expenses back.

Lawyers will do what you tell them to do. They do not always tell you the other options. You pay them to file a lien, you get a lien. The owner could fight it once the time comes to sell. You all may want to step back and re evaluate.

Just to be clear, on what level are you referring to when you say renters don't have to abide by HOA rules?

MissyP (Alabama)
Posts: 63

Posted:

The level is basic. If the lease agreement between the owner and the renter does not dictate they have to follow the HOA rules, then the renter does not. Their violation of the HOA rules is NOT in violation of the lease agreement. Your HOA rules may state the renter has to follow them, but that still does not mean the renter does. It just means the OWNER is responsible for enforcing those rules on their renter. Which can ONLY be done by the terms of their lease agreement.

The HOA is a THIRD party to the lease agreement. It does NOT own that home. They do NOT hold the terms and agreement to the lease. The renter also does NOT pay the HOA dues. (Unless in Florida to avoid foreclosure they can if the owner is behind). If a renter is not responsible for HOA dues and are NOT a member of the HOA, then how can the HOA have any legal rights to enforce their rules upon them?

Owners are the ones held responsible and can be subject to fines by the HOA if the fining schedule does exist for such things. Even then, most fines can't be used as the basis of liens. The owner's hands are tied as well as there is such a thing called "tenant rights". They can't just kick a tenant out unless they violate the terms of the lease. Lease does not have HOA rules following in it, the tenant can fight the eviction. A tenant can even fight an eviction for up to a year if they so choose. Which means they can even not pay rent that whole time while in dispute.

Typically a legal eviction it is a 10 working day notice for intent to evict. The second 10 day notice is for the actual eviction. If they do not leave then another 2 week period the sheriff department can come in and remove items/people. However, that is in cases of no dispute. Even a "good eviction" can take a month even for the OWNER to enforce. So the HOA can't expect "overnight" or a "fast" eviction if they do get the owner to evict their tenant. The HOA can't do it for them.

The law is the law. Renter's have rights too. Owner's can't violate those and the HOA can't enforce they violate the law. I owned rental property that my tenant stopped paying rent for 5 months and had to evict them. They even moved a baby emu into the back yard and worked on motorcycles on my living room carpet. The damage was pretty bad. However, even I could not evict them as the owner for up to 6 weeks... Don't expect the HOA who doesn't even own the home to have any better luck.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

O_M_G

I AGREE 100%

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By MissyP on 01/22/2014 6:15 AM
The level is basic. If the lease agreement between the owner and the renter does not dictate they have to follow the HOA rules, then the renter does not. Their violation of the HOA rules is NOT in violation of the lease agreement. Your HOA rules may state the renter has to follow them, but that still does not mean the renter does. It just means the OWNER is responsible for enforcing those rules on their renter. Which can ONLY be done by the terms of their lease agreement.

The HOA is a THIRD party to the lease agreement. It does NOT own that home. They do NOT hold the terms and agreement to the lease. The renter also does NOT pay the HOA dues. (Unless in Florida to avoid foreclosure they can if the owner is behind). If a renter is not responsible for HOA dues and are NOT a member of the HOA, then how can the HOA have any legal rights to enforce their rules upon them?

Interesting. This is true in some states, but not in all states.

For California, this is from davis-stirling.com:

Fining Tenants. CC&Rs will sometimes have a broad statement that the document is binding upon "each member, tenant, resident, and occupant" and each has a duty to follow the association’s governing documents. If so, penalties may be levied against tenants as well as owners for rules violations.

And this law from Vermont (and other states):
If a tenant of a unit owner violates the declaration, bylaws, or rules of the association, in addition to exercising any of its powers against the unit owner, the association may:
(1) exercise directly against the tenant the powers described in subdivision (a)(11) of this section;
(2) after giving notice to the tenant and the unit owner and an opportunity to be heard, levy reasonable fines against the tenant for the violation; and
(3) enforce any other rights against the tenant for the violation which the unit owner as landlord could lawfully have exercised under the lease or which the association could lawfully have exercised directly against the unit owner, or both.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Would there not also be an obligation on the part of the landlord/owner to INFORM the prospective tenant that there are CCRs, or is everyone supposed to perform a title search prior to renting ?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

An involved owner concerned about their property would indeed inform the tenant of the HOA existance and rules. They would also have them given to the tenant and written in the lease agreement. Especially if the HOA has a fining schedule in place. If the owner is going to face fines and punishment for their tenant's actions, why would they not inform their tenant?

The HOA on the other hand does not always have to be informed the property is rental. The HOa does not require owners have to inform their tenants of the rules. Each HOA and state is different. Read your own rules to see how that applies.

Former HOA President

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Our Declaration (CCRs) requires that all lease agreements be approved by the Association. Furthermore, the Declaration gives the Association the right of first refusal for all leases, meaning that the Association has the right to lease (or rent) a unit for the same terms offered to the proposed renter(s).

MissyP (Alabama)
Posts: 63

Posted:

Let's put that in perspective of what that is really saying. The first right of refusal means the HOA can say that owner can NOT rent out that unit. However, it does mean that if the HOA does, IT can rent out the unit instead for the SAME time terms. Say you want to rent out your home in a 1 year lease. The HOA does not approve that lease for undefined reasons. (Which is undefined if your document are silent on what constituted denial). The HOA then has to tell the owner that it would then sign the lease for 1 year instead. The owner has to give them a 1 year lease just like they would have the tenant.

The property is still listed as "rental" but the HOA has the lease agreement to the lease. That does not mean they can "LEASE OUT" to another renter. It means the HOA itself is the leasee. The HOA would be paying the rent to the owner. Which doesn't make a whole lot of sense to do. Even if the HOA sublet that lease to someone else, that would make the HOA responsible for paying the rent AND making sure the terms of their lease had the HOA terms defined in it. The owner would also have to have a similar agreement to the HOA.

Sometimes good laws are written for good reasons but the actual execution fails. I see the intent of this rule in your CC&R's but if challenged, most likely would not stand up. Rental amounts do effect the interest rates, refinancing, and the ability to offer certain loan packages. However, actually enforcing or having the ability to enforce rental restrictions is much much harder than it appears. Considering the HOA does NOT own the homes and thus would not have the ability to control what one does with the ownership. Loan/Mortgage companies have more powers in doing so since they do own the title and terms to the closing papers.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By MissyP on 01/23/2014 6:11 AM
Let's put that in perspective of what that is really saying. The first right of refusal means the HOA can say that owner can NOT rent out that unit. However, it does mean that if the HOA does, IT can rent out the unit instead for the SAME time terms. Say you want to rent out your home in a 1 year lease. The HOA does not approve that lease for undefined reasons. (Which is undefined if your document are silent on what constituted denial). The HOA then has to tell the owner that it would then sign the lease for 1 year instead. The owner has to give them a 1 year lease just like they would have the tenant.

The property is still listed as "rental" but the HOA has the lease agreement to the lease. That does not mean they can "LEASE OUT" to another renter. It means the HOA itself is the leasee. The HOA would be paying the rent to the owner. Which doesn't make a whole lot of sense to do. Even if the HOA sublet that lease to someone else, that would make the HOA responsible for paying the rent AND making sure the terms of their lease had the HOA terms defined in it. The owner would also have to have a similar agreement to the HOA.

Sometimes good laws are written for good reasons but the actual execution fails. I see the intent of this rule in your CC&R's but if challenged, most likely would not stand up. Rental amounts do effect the interest rates, refinancing, and the ability to offer certain loan packages. However, actually enforcing or having the ability to enforce rental restrictions is much much harder than it appears. Considering the HOA does NOT own the homes and thus would not have the ability to control what one does with the ownership. Loan/Mortgage companies have more powers in doing so since they do own the title and terms to the closing papers.

I cannot say whether or not the right of first approval would stand up to a court challenge, but the state's Common Interest Ownership Act does state that the the Association "May exercise any other powers conferred by the declaration or bylaws" which leads me to believe that it probably would.

As you know, laws differ in each state, so you cannot use your personal experience to assume that all states behave the same. Connecticut's Common Interest Ownership Act is based on the Uniform Common Interest Ownership Act which has been adopted in Alaska, Nevada, Minnesota and a handful of other states. One thing that may surprise you is that the CIOA also gives associations the power to enforce the declaration and bylaws against tenants as well as unit owners. Again, this may be contrary to your experience, but it's the law here nonetheless.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

If the owner made a copy of the Covenants/Bylaws part of the lease agreement would not the renter be agreeing to abide by such?

Seems easy enough.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I am not nor do I play a lawyer.

Let us remember that right of first refusal basically came along as a method of keeping "undesirables" out. First refusal generally says that the holder of the right of refusal must meet all the "terms" in order to do so.

Person selling unit for $250K. Association exercises their right of first refusal. The association must then buy the unit for the $250K.

Not sure how it would work an a rental, but probably the same.

As I understand it, right of refusal is not simply the ability to say that person cannot rent/buy.

MissyP (Alabama)
Posts: 63

Posted:

Exactly my point JohnC. The owners who wish to rent out their property should put in their agreements to abide by the HOA rules and give a copy of them to the tenant. However, HOA's do not require that caveat to be in the lease agreements and most off the shelf rental agreements do not have this in them. Most people use the off the shelf do it yourself forms you can buy at a local office store. That is why it is important that if you do decide to rent your property out, then modify the pre-made agreements to help protect both you and the HOA.

Keeping "undesirables" out has to be defined. The HOA would need a policy in place that the potential tenant has to pass a criminal background check. I had to do one when I rented an apartment once. However, that is not fool-proof as it only counted for the county I was in. It did not take in account for other states, cities, or counties I may have lived in before. Plus the owner should be doing this in addition. For credit checks, I don't think the HOA has a right to social security numbers of the owners never the less tenants. Seems another item that the HOA could not deem "undesirable" for reasons for refusal if they can't prove it. That's why I don't believe such a system really works even though the intent is there.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

just remember that, if exercised, the unit would now be owned by a corporation

a private seller may sell or not sell to whoever they choose, for whatever reason they choose

a corporation is bound by the Fair Housing section of the Civil Rights Act

if a director knowingly violates same they most probably would be found PERSONALLY LIABLE for any damages awarded

RIGHT OF FIRST REFUSAL is a ticking time bomb

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