Medically Necessary Pets, Part II.
October 6, 2009
A recent Florida court ruling offers community associations some guidance.
By: Joshua Gerstin, Esq.
At the time of my first article entitled Medically Necessary Pets, the Florida courts offered little guidance to community associations dealing with “medically necessary pet accommodation requests”. Without such guidance many community associations were inclined to permit an owner’s pet upon receipt of a doctor’s prescription, regardless of its merit.
In the recent case of Hawn v. Shoreline Towers Phase I Condominium Association, Inc. et. al., the United States District Court for the Northern District of Florida specified information it deemed reasonable for an association to seek from an owner that submitted a medically necessary pet accommodation. The facts of the Hawn case illustrates the issues many community associations deal with when a medically necessary pet accommodation request is submitted.
In Hawn, the Shoreline Towers Phase I Condominium Association had a long-standing no pets policy prior to Mr. Hawn’s purchase of his unit. Nevertheless, a year after moving in, Mr. Hawn adopted a puppy and requested the Board of Directors make a “reasonable accommodation” allowing his puppy to stay. A letter from his psychologist (claiming the dog ameliorated severe panic attacks) and chiropractor (claiming the dog assisted with mobility issues) accompanied his request.
After meeting with Mr. Hawn the Board of Directors requested the following further information:
- The qualifications of the two medical professionals that submitted letters to the association in support of his request.
- Information specifically setting forth the manner in which the pet helps him deal with his disabilities.
- Whether there were other corrective measures that could help the owner with his impairments.
The owner never responded to the association’s information request and his accommodation request for his pet was denied. Soon thereafter, Mr. Hawn filed a lawsuit.
During discovery the association realized Mr. Hawn first petitioned the Board to rescind its no-pet policy without mentioning his disability. It was also discovered that Mr. Hawn had only seen each of his pet prescribing doctors twice. In dismissing the owner’s case, the court held the initial information submitted by the owner was insufficient for the association to make a reasonable determination. Mr. Hawn’s subsequent refusal to respond to the Board’s information request was fatal to his case.
For the time being, the Hawn case offers guidance as to the information an association should review before bypassing its covenants and granting a medically necessary pet accommodation request. In particular:
- the qualifications of the medical professionals that prescribed the pet and the specific nature of the owner’s disability and;
- information specifically setting forth the manner in which the pet helps the owner deal with his disabilities;
- is there a reasonable “other way” to assist the owner with his disabilities besides granting the pet accommodation request.
Of note, a Board of Directors must take steps to keep an owner’s medical records and information protected from disclosure, including official record requests.
Over time, the proper course for an association to take when reviewing a medically necessary pet accommodation request will change as courts review different cases with different facts. Therefore, prior to taking any action on an owner’s request for a medically necessary pet accommodation, consult your community association’s attorney.
Joshua Gerstin, Esq. is the Managing Partner of the Gerstin Associates law firm located at: 1499 West Palmetto Park Rd., Suite 412, Boca Raton, FL 33486. To submit a question to the Community Counselor, you can call, fax or email Joshua Gerstin, Esq. at:
Telephone: (561) 750-3456.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. All information on this website is not legal advice, legal counsel or a legal opinion. All information provided on this website is provided for general information purposes only and should not be relied upon. For legal questions or, before taking any action, please contact your attorney.
Breaking News: H.R.1106, The House Foreclosure Bill Can Amend All Liens on a Property, Not Just the First Mortgage
March 6, 2009
Businesses that lend money secured by property as well as contractor’s that furnished goods and services on a home will lose a lot of money if the new House Foreclosure Bill passes in its present form. The bill is known as: Helping Families Save Their Homes Act of 2009. To prevent mortgage foreclosures and enhance mortgage credit availability. In essence, the bill allows for the modification of a creditor’s rights as to any liens on a property once the owner qualifies with his/her first mortgage to go into this new bankruptcy modification. This includes, Community Associations, homeowner associations, condominium associations, contractors, business deals/loans secured by a mortgage or lien.
To make matters worse, if a debtor in the Bankruptcy modification plan incurs new debt secured by his/her home, the notice provisions to the Bankruptcy Court to preserve the right to collect that debt have become more complicated. If done wrong, the your can be wiped out.
Call your United States Senator and make them aware of these issues. Considering many Congressman have openly admitted to not reading the “Stimulus Bill”, it’s doubtful they read the Helping Families Save Their Homes Act of 2009. To prevent mortgage foreclosures and enhance mortgage credit availability.. Call them now, the vote by the United States Senate is soon.
SEC. 103. AUTHORITY TO MODIFY CERTAIN MORTGAGES.
Section 1322 of title 11, United States Code, is amended–
(1) in subsection (b)–
(A) by redesignating paragraph (11) as paragraph (12),
(B) in paragraph (10) by striking `and’ at the end, and
(C) by inserting after paragraph (10) the following:
`(11) notwithstanding paragraph (2), with respect to a claim for a loan originated before the effective date of this paragraph and secured by a security interest in the debtor’s principal residence that is the subject of a notice that a foreclosure may be commenced with respect to such loan, modify the rights of the holder of such claim (and the rights of the holder of any claim secured by a subordinate security interest in such residence)–
SEC. 104. COMBATING EXCESSIVE FEES.
Section 1322(c) of title 11, United States Code, is amended–
(1) in paragraph (1) by striking `and’ at the end,
(2) in paragraph (2) by striking the period at the end and inserting a semicolon, and
(3) by adding at the end the following:
`(3) the debtor, the debtor’s property, and property of the estate are not liable for a fee, cost, or charge that is incurred while the case is pending and arises from a debt that is secured by the debtor’s principal residence except to the extent that–
`(A) the holder of the claim for such debt files with the court and serves on the trustee, the debtor, and the debtor’s attorney (annually or, in order to permit filing consistent with clause (ii), at such more frequent periodicity as the court determines necessary) notice of such fee, cost, or charge before the earlier of–
`(i) 1 year after such fee, cost, or charge is incurred; or
`(ii) 60 days before the closing of the case; and
`(B) such fee, cost, or charge–
`(i) is lawful under applicable nonbankruptcy law, reasonable, and provided for in the applicable security agreement; and
`(ii) is secured by property the value of which is greater than the amount of such claim, including such fee, cost, or charge;
`(4) the failure of a party to give notice described in paragraph (3) shall be deemed a waiver of any claim for fees, costs, or charges described in paragraph (3) for all purposes, and any attempt to collect such fees, costs, or charges shall constitute a violation of section 524(a)(2) or, if the violation occurs before the date of discharge, of section 362(a); and
`(5) a plan may provide for the waiver of any prepayment penalty on a claim secured by the debtor’s principal residence.’.
