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Can Tenant Claim ‘Emotional Support Animal’ at Any Time?

RE Q&A: A condo board denied a tenant’s dog that was 30 pounds above their weight limit, but she later got documentation showing it’s an emotional support animal. Can she do that? Also: Condos, HOAs, noise and pickleball.

NAPLES, Fla. – Question: 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

Answer: 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.

Question: 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

Answer: 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 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.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2021 Journal Media Group. Attorney Steven J. Adamczyk is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross.