HOA expert on rule barring service dog from potty breaks on property

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: How can some condominiums and co-ops get away with prohibiting service or therapy animals from relieving themselves on the common grounds of their communities? They will allow an owner to have an assistance animal, but it must relive itself outside the community. Most disabled people, like my brother, cannot walk 100 yards out of the community carrying their pet. It seems they found a loophole to effectively prohibit assistance animals and I am starting to come across this more and more as we search for a new place for him to live. Signed, T.W.

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Dear T.W.,

They “get away” with this because Fair Housing Act battles can be time consuming and expensive, and most people don’t have the knowledge, funds or motivation to fight over these issues. They’d rather compromise if possible than make waves and become hated in their community (which, unfortunately, is something I see happen frequently).

If the person is able-bodied and has a small emotional support dog (a Yorkie for example), they might very well be willing to carry their dog to avoid the confrontation. That doesn’t, however, mean that it’s the right legal outcome.

The entire concept of the Fair Housing Act is that a housing provider is obligated to provide a disabled resident reasonable accommodations of its rules if necessary to afford that person the full use and enjoyment of the premises. Allowing a dog in a no-pet property is one such accommodation. However, if I were advising a client, I would be concerned that putting extensive restrictions on an assistance animal, even if that animal is allowed, might be seen as further discriminating against the disabled resident, which might constitute its own violation.

With your brother, however, I think you have an even stronger argument against such a rule. You say that your brother, due to his disability, cannot carry his pet out of the community. Let’s say that the community association has a rule that animals (whether assistance animals or pets) may not eliminate on the property. Your brother is entitled to an accommodation of that rule due to his disability. The question would be whether allowing his animal to eliminate on the common property is a “reasonable” accommodation of the prohibition.

I cannot imagine a court finding that it is unreasonable to allow someone’s dog to pee outside, given that doing so is the universal norm. I think that would be a losing case for the association, and so if you run into trouble like this and need to press further, that would be your angle. It could however be that you prefer not to make trouble at a brand-new community — and if so you’ve really answered your own question.

Question: A nurse working for one of the residents in our condo claims she fell in our parking lot and incurred severe injuries. She is blaming our condo for not having a sign up saying that the ground was wet (presumably this happened after it rained) and for not having a guardrail to catch people when they fall.

Legally, I don't understand why every time it sprinkles, we should run outside and put a sign up; and how can you have guard rails in a parking lot since they would impede the movement of cars? How can she make these claims? Signed, P.C.

Dear P.C.,

You know all those signs you see on the highway telling you that you may be entitled to money if you’ve been in an accident? There is an entire category of attorneys who specialize in representing people who have been injured. If you get hurt, they will take your case on a contingency and go after anyone who they can argue has any responsibility to pay something for your injuries.

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In a slip and fall case, that usually means writing a letter to the property owner alleging that they did something negligent (effectively, legally careless) that led to the injury, and demanding that property owner’s insurance information. They will then open a claim with the insurance company and try to get as much money as possible for their client either by negotiating a settlement or by filing a lawsuit to put pressure on the insurer.

The fact that this woman alleged that your association was negligent in not putting up a “wet floor” sign or installing handrails does not mean that’s a winning argument in court. It’s simply the best argument her attorney could come up with for their demand. The argument needs to be colorable enough to present to the insurance company to try to get paid.

I know to laypersons it sounds ridiculous, but if you’re the person who is badly injured, I assure you that you would feel differently. This is just the way that personal injury law works (and of course I am simplifying things — personal injury attorneys fight aggressively on behalf of extremely meritorious clients, as well).

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board-Certified Specialist in condominium and planned development law.  This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles.   Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Email your questions to condocolumn@gmail.com.  Please be sure to include your location.