Condo Associations and Emotional Support Animals
Q: Can an HOA enforce a pet headcount violation after 10 years? If so, what if they are "emotional support dogs"?
Background: On behalf of a disabled, senior citizen: I purchased a condominium in 2000 and had 1 small dog (>10 pounds) and was within the 1 dog limit at the time. I added a second small dog in 2005 (again >10 pounds) and this has been common knowledge all along. In 2009, the violation issue was raised and discussed that enforcement after these several years was not reasonable and I should be grandfathered in. There are no written records available at this time to substantiate the boards agreement with regard to grandfathering however, no further enforcement action was taken since then until now. After I complained about the ethics and decisions of the board, all of a sudden they are retaliating and demanding that I get rid of one of my dogs or they will begin fining me to place a lien on my property and take my property from me! I am a disabled, senior citizen and my dogs have been designated by my physician as emotional support dogs.
A: The short answer is NO. They cannot force you to get rid of your dogs.
There are several reasons for this. The first reason is that being prescribed emotional support animals by your physician, they are no longer "pets". No "pet" restriction applies to animals designated as emotional support animals. Additionally, by you being in open violation of the covenant for 10 years with no action against you, the Association has likely "waived" any right that it has to enforce that covenant against you. In layman's terms, the Association has just waited too long to complain, so it would not be fair to allow them to complain now.
It should be noted that under Florida law, Condo associations may fine a unit owner for violating the association's governing documents, but the fine cannot exceed $100/day, up to $1,000 in the aggregate. Also, a fine may not become a lien against a unit. The most they can do is to sue you for breach of contract (but remember, if you are not in violation, they can't even do that). Additionally, in your case, the Association might have some legal problems of its own going after you. It could possibly be guilty of extortion for its threat of legal action. If it tries to sue you or discriminate in any way because of your emotional support dogs, the Association might be in violation of the Fair Housing Act. Suing you in retaliation for raising questions or complaining about the board of directors is also strictly prohibited by Florida statute. Furthermore, any attorney who attempts to sue you without legal grounds could be sanctioned by the court and force to pay damages to you, including your attorney fees, or face federal and state Fair Debt Collection claims . Provided your dogs are truly emotional support animals, you appear to have a strong case.
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