FHA vs. HOA documents

Hello just had conversation with ON about large dogs that are coming in to owners and tenants? Our documents state GO allowed to have dogs weighing up to 30 lbs. Renters not allowed dogs/pets.Now complaint was why are we allowing large dogs to renters and even owners. She quoted me Fair Housing Act and the animals were ESA? I believe we all know the difference between the Service dogs vs. ESA. These dogs do not wear vests as a real service dog does when in public. If this is case that the can over rule our documents / rules then what good are any of ours, or our HOA? Just looking for any advise on how to handle this invasion of ESA animals.Thanks Joni SC

The issue isn't so much renters vs. owners, but responsible/irresponsible pet ownership. There are small dogs who are miniature Napoleons in personality (especially chihuahuas) and big dogs who are very sweet. A lot of people are trying to get around community rules claiming their dogs are emotional support animals, but there are differences as to what applies as an emotional support animal vs. someone who got a vest off the internet (google it and all sorts of vendors will pop up) claiming the dog is an emotional support animal so they can take them everywhere, whether they should actually be there or not.

We've discussed therapy dogs, service animals and such on this website before, so you might want to start by looking up those conversations to get some ideas on how to address them. You might also look at the ADA website, which has all sorts of useful information on disability rights. Start with this link which discusses emotional support animals vs. service animals - https://adata.org/publication/service-animals-booklet. You may find the following verbiage from the website intriguing:

"While Emotional Support Animals or Comfort Animals are often used as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and therefore are not covered by federal laws protecting the use of service animals. Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning".

I've often recommended starting with gathering information - how many critters are we talking about and how many fall within the 30 pound limit vs. a giant dog? What sort of problems have come up (more noise from barking, dog poop everywhere, increase in bites, etc.) Have these people presented any documentation showing their emotional support animal is even trained to serve that function? there and perhaps talking to local disability advocates and animal control people, as well as your association attorney on rules that should be enacted and how they should be enforced. I think the rules should start with some definitions on what is considered a garden variety pet vs. a service animal, comfort dog, etc.

On top of that, add the usual rules you probably already have - dogs must be under the owner's control when outside, owners must clean up after their pets or be billed by the association, dogs should have all their shots, etc. Give everyone a copy of the rules with an effective date and then start enforcing them. No it's not as simple as it may sound and there will be pushback, so if you're on the board, may as well brace yourself.

By the way, in some of your posts, I get the feeling you really don't like renters. I've had some concerns about them also, because close to half the people who live in my townhouse community rent. My concern isn't that they rent, but too many HOMEOWNERS who rent to them don't bother to tell them the rules or ensure compliance. To avoid people claiming selective treatment and that stuff, you need to think of enforcing the rules against all residents, regardless of how they got there.

That said, you can and should hold owner/landlords responsible for the behavior of their tenants (a few hits in the wallet may compel them to pay more attention instead of treating the HOA as an el-cheapo property manager, but that should also be the case when you're dealing with an owner-occupant and his/her household, guests, etc.

Thank you for the response! I have researched the difference it's an informative read. What Property Manager is saying is can not do anything if they have papers (which we know are from internet). If legit service dog is welcome these others have no training.Not so down on renters. We have some very nice renters who obey rules and you wished they were owners. Yes you are right they do not receive rules or documents even when buying.That is one other thing needs to be addressed is making people aware before they rent or buy. Realtor so eager to sell does not disclose much. I have even seen advertising a condo saying tenants allowed pets. Oh not true. I was on phone calling the people listing property.PM is arguing can't do a thing about it because of Fair Housing Act protecting them.Thanks again

Your HOA can't have different rules for Renters versus owners. Renters are NOT members of the HOA. They also don't have a lease with the renter. The responsibility is on the owner to enforce the HOA's rules. The HOA can NOT enforce rules on renters. Just hold the owner responsible for violations of the renter.

So if the owner can own a dog, then they can decide if their renter can. That will be in their lease agreement with their tenant. It's always best for the owner to put in an extra paragraph that their renter obeys the HOA rules. Otherwise it can hold the owner the ability to evict the renter for violating any rules. If it's not in there, then it's not a condition of the lease. So Tenant's rights kick in.

Sure ut can. As long as the differences are spelled out in the covenants.

I beg to differ in the difference between Service and ESA animals. A service animal has been trained since a pup(speaking of dogs) to perform a certain task or tasks for individual. ESA dogs per day do not have this certain task to perform only comfort for a mental disorder. People pay tens of thousands of dollars for a Service dog. People with a small pet can go on internet to receive papers as did my neighbor so her dog could take someone's seat on the plane. I know that their some that are actually needed there is a lot of abuse cause they know Fair Housing will back them. Now you move in tenant should be aware of rule when signing lease willing knowing our HOA rules and documents.Later on I need ESA dog then there is the problem. Signing lease to the fact you are not allowed pets then decide you are breaking lease and PM can evict. Now if you come with legit papers which some say you can not ask for a reason why you require this animal there is the other rub.It all starts with who is selling and renting units needs to disclose before signing anything all rules and documents. I appreciate the discussion and all feedback. Still the question remains why does Fair Housing Act trump our HOA documents?

You enforce it on the owner of the property. If there is a violation of the covenants, it is the owner's responsibility.

I believe we all know the difference between the Service dogs vs. ESA. These dogs do not wear vests as a real service dog does when in public.

I beg to differ. Most people do NOT appreciate the differences between the two and the differing requirements of FHA and ADA. A vest is meaningless.

Point of clarification: Service Dogs do NOT have to be trained at great cost from puppyhood; they can be trained at any time by the owner or any individual.

In my experience with private rental properties, I encountered a man who was quite obviously hard of hearing and who trained his own service dog (a forbidden breed) to react to certain conditions in the home environment, such as a knock on the door or nighttime disturbances. This did not require costly training; the disabled person trained his own dog to perform supportive behaviors.

So what documentation could I ask for?

My Answer: None. The HUD says that you cannot ask an applicant for proof of a disability if such disability is obvious and apparent. This would be the case with a blind person using a cane to walk or a hard of hearing person who wears hearing aids. The HOH rental applicant portrayed obvious signs of disability and I did not question the nature of the disability or ask for documentation. His declaration, along with his presentation, fulfilled the requirement of evidence of disability, need for a service animal and a housing accommodation despite the breed and weight problems. I could not ask for a pet deposit; service animals are not pets. Functionally, they are considered "medical equipment".

ESA present a different problem because the nature of the disability is not typically obvious. However, covert emotional needs are no less compelling than physical needs. The task of an ESA is different but equally important. It is actually easier to qualify a legitimate ESA applicant because you CAN ask for documentation and require that the documentation be verifiable, with reasonable standards. For those with true need, the request for supporting documentation is expected and readily offered when asked for. When candidates with casual self-proclaimed emotional needs are advised that the documentation will be vetted, the tenant-applicant usually goes away or otherwise removes themselves from the application verification process.

For casual HOA landlords, it is a challenge just to find a tenant who will pay the rent. HOA landlords do not typically manage tenants professionally. HOA's have no business messing with an Owner-Tenant contract and, as Melissa states, it is entirely up to the Owner to be "disciplined" by the HOA for housing a problem occupant on HOA property. Seasoned owner-landlords know that it is expensive and risky to evict tenants for annoying behaviors and may consider their interests and obligations superior to the HOA's concerns. If HOA's want to write separate rules for renters, it better be in the Covenants and be specific.

Regardless of the perceived or actual nuisance of living with animals in our world in any capacity, HOA's would be unwise to engage in an adversarial position with HUD on this hot issue (or any other housing discrimination matters) or to violate contractual private property rights.

Second part of lady with unleashed service animal at pool was she did not even live here.

Geno is 100% correct; local leash, health, tag and vaccination laws apply to everyone including service animals and ESA's.

Your HOA can make the rules it wants, but Owners' tenants will still have a FEDERAL right to have access to housing and Owner must accommodate. (HOA's are subject to additional legal responsibilites and operation of law apart from its own internal governing documents.) That means that the weight and breed rules must be relaxed to accommodate a disabled tenant. Physically and emotionally disabled persons and their service animals are "protected" by HUD. HUD defines community associations and owners as housing providers. Service animals and ESA's are not pets. HOA's that do not grasp this reality potentially expose their members to liability.

If pool lady was a guest of a tenant who was lawfully given pool privilege by her Landlord (Owner), she has the right to be in the pool area with a service animal. She still must obey HOA rules, the local health/leash laws and pick up any deposits that the animal makes. She must obey local licensing and vaccination ordinances. She cannot allow her service animal to create a nuisance to others.

It is inconvenient and frustrating for 3rd party host common properties to "let go" of controls, but they must obey the larger society when their rules conflict with the rights of access to housing for the disabled.

For the owner/tenant part, they must obey laws and rules apart from those limiting access to public and common areas. Their privileged accommodation right is for access to housing and appurtenant elements. HUD does not give disabled persons freedom to ignore Owner/HOA rules. The pool lady who did not live there has a sponsor. If sponsor is a Tenant, the Owner needs to be consulted about its Tenant's guests. The HOA, if it does not have provisions in the covenants providing for tenant/owner rental restrictions, will have no choice but to attempt to get voluntary compliance from the Owner.

HOA's (and Owners) would be wise to err on the side of accommodating and not gamble on their rules protecting them from housing complaints. HOA's would be wise to remember that it costs NOTHING for a protected class person to file a complaint. HUD will do all the work investigating the complaint.

This is not exactly true. There are exceptions. They can have a harness or no restraint at all (other than verbal) if it interferes with the service they perform.

Perhaps, but a service animal is not allowed to behave so as to constitute a nuisance. A service dog running around off-leash in the pool area, maybe jumping in the pool, bothering other bathers, peeing or pooping without cleanup, barking, etc. Those types of behavior are still not allowed. Granted, most legit service animals are well trained and won't do those things, but ESAs are often not trained all that well. It depends on whether or not the behavior constitutes a nuisance.