By Attorney Steven J. Adamczyk
Q: A tenant seeking approval to reside in our condominium has a dog weighing 60 pounds. We have a 30-pound limit on all dogs. When we denied the application because of the dog, the tenant then claimed that the dog is an emotional support animal and provided a letter dated after our original denial from a mental health professional. Do we have to allow this dog?
T.A., Naples
A: There are multiple issues here, but the short answer is that the weight of a valid emotional support animal is irrelevant. If a dog is also an emotional support animal, it is not subject to pet restrictions based on weight, size or even breed. That is because the emotional support animal is viewed as a medical device and not as a dog.
The bigger issue is whether the request is valid in the first place. Emotional support animals provide a valuable medical benefit for many, but it is no secret that there are also abuses of the laws just to circumvent otherwise valid pet restrictions. If the disability is not readily apparent, the association is permitted to request reasonably reliable medical documentation from a health care provider in the relevant field. This information should provide the board with a sufficient basis to determine whether the emotional support animal is necessary to allow full use and enjoyment of the premises. The relevant laws and the analysis are the same whether the requesting party is an owner or a tenant.
The fact that the letter from the medical professional is dated after the original denial may mean that the person only sought the medical opinion when it became necessary to find a way to bring the dog into the unit. Alternatively, it could just mean that the tenant has been receiving valuable medical care for years but never previously requested the letter. There is a relatively new Florida statute as well which requires certain minimum requirements when the health care provider is from outside of Florida. There can be serious consequences for denying an appropriate request for an accommodation to the association’s pet policies for an emotional support animal, and thus we always recommend having the request and supporting documents reviewed by a licensed Florida attorney to determine if the request is consistent with federal and Florida laws governing this issue.
Q: My homeowners association (HOA) has seen an influx of short-term rentals and we want to require minimum lease terms to prevent them. Are current owners grandfathered or are they subject to a new lease covenant if approved by the members?
R.D., Bonita Springs
A: This particular issue has been very different between condominium and HOAs. In condominiums, the statute today provides that amendments to the covenants impacting minimum lease terms are only effective against owners who vote in favor of the new leasing amendment, and those owners who take title after the amendment is recorded. Specifically, Florida Statutes Section 718.110(13) provides: “an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.” In other words, if you own a condominium unit and vote against minimum lease terms, you should be able to lease under the existing covenants and are not subject to the new leasing restriction that could prevent short term rentals.
In an HOA, it is important to note that the statute referenced above governing condominiums, on the date of this article’s publication, is not similarly contained in Chapter 720 governing HOAs. Thus, today, an amendment imposing minimum lease terms in an HOA is effective against all owners – even those who vote against the amendment or don’t vote at all.
A new law, however, recently passed by the Florida legislature, could bring the HOA statutes more in line with the condominium statute and would provide a grandfathering mechanism for lease amendments which impact minimum lease terms. This new law would go into effect July 1, 2021. Because we believe that this particular law would only impact amendments to your covenants recorded after July 1, HOAs should review their current leasing covenants and determine quickly whether it matches what you want. If you want to amend your covenants so that different leasing requirements are applicable to all owners (irrespective of whether they vote for or against a leasing amendment) then you may want to contact a licensed Florida attorney and expeditiously pursue an amendment and have it recorded before July 1 of this year.
Q: We want to construct some new pickleball courts at our amenity center because there is so much demand to play. Some owners are objecting to the new courts, arguing that they will be too loud. Can they prevent the association from installing the courts?
B.B., Naples
A: This is a very popular question. The two main issues involve objections over noise and the association’s discretionary ability to alter its common areas to construct popular amenities. First, owners living close to the proposed pickleball location will likely argue that the noise created by pickleball constitutes a nuisance. This will generally require the association to perform an analysis of its specific nuisance provisions in the covenants and also to review other covenants applicable to recreational areas. For example, if the proposed pickleball location is on a platted tract dedicated as a recreational tract, it is a good argument that the objecting owner had knowledge that noise and activity was always a possibility. Just because tennis is generally quieter than pickleball, that doesn’t necessary mean that owners only consented to noise levels generated only by tennis. Additionally, there are noise engineers that can perform an analysis of your property and natural features that would amplify sound. The engineer can recommend mitigating improvements that can further minimize an owners’ objection.
The second issue is typically whether the board had the discretion to approve pickleball courts without membership approval. In a condominium, for example, it would be a material alteration to construct new pickleball courts or to convert existing tennis courts into pickleball courts. So, in a condominium, it is possible that the owners would need to approve the change. In an HOA however, there is no statutory concept of material alterations and thus each HOA needs to analyze its own specific covenants to determine whether it has a self-imposed restriction on alterations to common areas or amenities.
In short, the noise objection is a common one, but an objection that can largely be overcome with reasonable options to mitigate sound and the fact that noise was always a possibility in a recreation area. Before moving forward with construction, however, we recommend you consult your legal counsel to review your specific governing documents (for condominiums and HOAs) to determine whether the board has the discretion to make this improvement or whether a larger vote is required by the membership.