Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

Several of the resident-owned communities we work with have had the great displeasure of dealing with complaints filed by residents under the Fair Housing Act.   Most of these complaints are without merit and are eventually resolved in favor of the community.  Quite often, the resident filing the complaint is simply trying to delay an eviction action, has a personal vendetta against the manager or one or more board members, or is attempting to prevent the association from exercising its rights to determine whether a "reasonable accommodation"should be granted to the resident.   

It's not a stretch to say that any resident that files a Fair Housing complaint is often regarded by many in the community as a major aggravation that is costing the association money and creating conflict and misery for his or her neighbors.   Occasionally, other residents in the community (and even a few board members) will strongly suggest that the ROC would be better off if the association simply filed an action to evict the complaining resident.

As most of you already know, such a course of action is a recipe for certain disaster.  The latest example can be found in a press release issued by the Department of Housing and Urban Development on July 16, 2010.   

The press release summarized the decision of a HUD Administrative Law Judge who ordered an Iowa landlord to pay $52,150 in damages and civil penalties for retaliating against a single mother of three by threatening to evict her because she filed a housing discrimination complaint.

The brief facts are as follows:

• The mother's fair housing complaint alleged that the landlord refused to rent her a three-bedroom apartment and unjustly charged her a higher security deposit because of her sex
• HUD found no evidence of sex discrimination
• However, HUD nonetheless charged the landlord and the landlord's management company with unlawfully retaliating against the tenant by terminating her lease and attempting to evict her because she filed the fair housing complaint

It's important to note here that it was the action of retaliating against the renter that formed the basis of this judgment--even in the absence of any finding of discrimination.

Please keep this case in mind the next time one of your residents confronts you and demands that the association evict the "gadfly" that's filed a fair housing complaint.  The last time I checked, $52,000 was still a lot of money--whether in Iowa or in sunny Florida.

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The managers and board members in the communities we work with have been faced with some rather interesting situations during the past few months.   Here's a sampling--see if you can guess what they have in common:

• A ROC manager receives a frantic call from one of the residents in her community about  another resident who wandering up and down one of the streets in the community waving a machete.   
• A board member wants to stop cars that she feels are speeding in her community and tell the drivers that they are violating the rules and regulations in her community.
• Another community is about to begin a substantial renovation of its clubhouse and one of its board members would like to be appointed as the "project supervisor" to oversee the general contractor and all of the work.
• Several board members in another community are convinced that a resident requesting to have a pet reside with her as a "reasonable accommodation" for her disability is not disabled and have stated that they will vote against granting the resident's request even if she provides the board with a statement from her treating physician verifying the disability and the need for the accommodation.

In each of these situations, ROC managers or Board members are being asked to or are volunteering to step well outside the scope of their  "job descriptions".   Neither  managers nor board members have the training nor should they attempt to disarm someone waving a machete, as that situation clearly calls for the local law enforcement authorities.   Likewise, even if a board member can be certain that someone is exceeding the speed limit in the community, the  appropriate action is to positively identify the vehicle and report the incident to the manager or, in certain circumstances, the police or sheriff's department.

While it's common for the community manager and one or more residents that have been appointed by the board to serve in an advisory capacity or as a "go between" with the general contractor and other professionals involved in a major community project, even if a board member has the qualifications (including any required licenses) to supervise the project, why would the association want to put itself in the position of being a defendant in a lawsuit filed as a result of damage or injury that occurs as a result of defective workmanship?    I have no doubt that the association would be sued on the grounds that one of its board members was supervising the project but I do have doubts that the association's insurance would protect the association in this situation--precisely because the association allowed its board member to act outside of a board member's "job description".  Also, what if the association is unhappy with the board member's performance as the supervisor--how comfortable will be other board members and the other residents in the community be if the board has to terminate their fellow board member's employment?

Finally, numerous court decisions involving Fair Housing Laws make it very clear that allowing board members to "play doctor" and substitute their judgment for that of trained health care professionals is a prescription for disaster.  While the association's board is entitled to request documentation to establish the basis for a resident's request for a "reasonable accommodation," once that documentation has been presented, a failure to make that "reasonable accommodation" may have serious and adverse financial implications for the community. 

ROC managers and board members have more than enough work within their "job descriptions" to keep them busy.   The community that allows or encourages its manager or board members to step outside of those "job descriptions" does so at its own peril.

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I've been working with Resident Owned Communities (ROC's) in Florida for almost two decades and problems with pets continue to be a source of aggravation for managers, board members, and residents alike. Pet rules come in all shapes and sizes. Here's a small sample of pet regulations that boards and managers are trying to enforce in their communities:

1. No pets allowed and no exceptions.
2. Pets allowed only in certain sections (aka "the Pet Section") of the community.
3. Indoor cats allowed (birds and aquarium type fish also) but no dogs.
4. Pets allowed but only up to a certain weight limit  (my personal "favorite"--ever tried putting an energetic terrier on a scale--and exactly who serves as the "weight police"?)
5. Pet allowed except for certain breeds of dogs deemed "dangerous" by the board of directors, the community's insurance company, and/or the resident "canine expert".

Whatever rules a community is trying to enforce (and the five I've listed above are just the tip of the iceberg), sooner or later, every community is faced with one or more residents that insist on attempting to violate that community's pet rules. Once the violation is brought to the attention of the board or the manager, you can be certain that many community residents will be "taking sides" on how (and whether) the community's leadership deals with the violation.  

There are several very important factors that should be considered when board members and managers determine how to deal with the violation of a pet rule, including the following:

1. Has the resident provided sufficient documentation or otherwise established that he or she is "disabled" and requires the pet as a "reasonable accomodation" under the the federal and state provisions of the Fair Housing Laws and the Americans with Disabilities Act? Is the pet certified as a "service animal"? In these situations, community leadership is required to allow the resident to have the pet and should not provide any information to anyone as to the nature of the resident's disability. Board members and managers should simply state that the resident's request to have a pet was allowed "on the advice of counsel". In other words, blame it on the attorney (I assure the communities I work with that I have thick skin and it goes with the territory).
    
2. Are there any other violations of the pet rules in the community that any member of the board knows about?  If so, the board should be prepared to take action against every person that is violating pet rules. One of my favorite conversations occurs when a resident that has received a notice of a pet rule violation calls me to complain that he or she is being harassed and "singled out" by the manager or the board because other residents in the community are violating the pet rules and the board hasn't taken any action against those residents. This allows me to assure the  resident that the manager or board will take action against any other resident violating the pet rules and to ask that resident to provide me with the names of the other residents violating the rules. I can have this conversation only if I'm confident that the board has taken and will continue to take the appropriate action against other residents violating the pet rules.
    
3. Is the board and the community prepared to incur the costs of enforcing the pet rules? When verbal and written requests fail to persuade the resident to remove the pet. the board has to decide whether the importance of enforcing the rule outweighs the money that the community will have to spend to have its attorney take the steps needed to attempt to force the resident to comply with the pet rule. If the resident is a unit owner in a cooperative or condomium, the community will have to submit the dispute to mandatory non-binding arbitration as required by Florida Statute Section 718.1255 (for condominium associations) or Florida Statute Section 719.106 ( for cooperative associations). In addition, because the arbitration proceedings are "non-binding," even if the association wins at the arbitration, the resident can delay removing the pet by filing a court action. This may result in the association having to try its case twice with a substantial increase in its legal costs that may or may not be recoverable from the resident violating the pet rule. Even where the resident is a non-member mobile homeowner subject to an eviction action under Florida Statute Section 723.061 (without the need to first submit the dispute to non-binding arbitration), costs and legal fees will be incurred by the association. In addition, anytime a dispute comes before an arbitrator or a judge there is no way to guarantee that the case will be decided in the community's favor and there are not many people that enjoy the stress and preparation involved in testifying under oath in a courtroom setting or at an arbitration.

I've always suggested that another factor to be considered by boards and managers when dealing with violations of pet rules is the behavior of the pet.   Would you rather be living next to a well-behaved Great Dane that has never disturbed anyone in the community or a yapping lap dog that barks at all hours of the day and night?

In some cases, the board may decide that a particular pet rule needs to be revised or removed entirely.  For example, perhaps there are now so many cats that have been allowed to live in the community in spite of a "no cat" rule that it makes no sense to keep that rule in the community's governing regulations.  However, the time to make that decision is not when the community is in the midst of a dispute with a stubborn owner who insists that the pet rules apply to everyone but him.  It's on these occasions that the board has to take a reasonable but at the same time forceful approach to the enforcement of its community rules.

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