A HOA has a ‘no pets’ policy for renters. Does it violate the law?

When Nicole Shaw was still in college, she began waking up in the morning with panic attacks, jolting awake and forced to start the morning panicking. Panic attacks can be debilitating for a person. Some experience a racing heart and trouble breathing, others pass out.

Not long after, Shaw’s anxiety worsened to the point where she refused to drive at night.

“It was really, really bad,” she said.

She saw a doctor in Vermont, where she grew up and went to college, who diagnosed her with generalized anxiety disorder. The doctor prescribed medication, which helped, but another treatment soon proved even more effective: She got a dog. Specifically, a gray Weimaraner she named Chief. She soon added a brown Pit Boxer-mix named Marley to the family. Her anxiety has since been much more manageable.

“I have not had any of the panic episodes that bad since I’ve had them,” she said. “When I do start to freak, they sense it and they come over and calm me down.”

Since getting the dogs, Shaw and her husband have graduated college, begun careers and moved to Carolina Forest, where they rent a home near Coastal Carolina University’s campus. She works as a preschool teacher, he’s an HVAC installer and the two just added their first child to the family. They hope to buy a house in the near future.

Now though, the homeowners association that oversees the Carolina Forest neighborhood she and her family call home is cracking down on the dogs, and have begun fining their landlord for having an “unauthorized pet.” The HOA’s rules say that homeowners are allowed to have pets, but not renters. That has Shaw worried about her housing situation as she and her husband start their family.

The situation also raises questions about if the HOA has violated federal fair housing laws. The Fair Housing Act allows renters to keep emotional support animals, several attorneys said, even those living in HOA communities. It’s a conflict that’s surfaced as lawmakers in Columbia are beginning to consider legislation that would create more oversight of HOAs and how they operate.

“Yes, the HOA fining the homeowner would violate the Fair Housing Act,” said Adam Protheroe, an attorney with SC Appleseed Legal Justice Center. “You’re essentially charging someone for their disability.”

Cindy Barrett, the president of the Greenfields at College Park HOA where the Shaws live, and who’s been involved in the crackdown on the dogs, declined to comment.

“I’m not making any comment,” she said, when reached by phone Thursday.

Angela Painter, a representative with Community Association Management Services, which works with the HOA, also declined to comment.

A conflict between neighbors, a conflict in the law

When the Shaws first moved into their Carolina Forest home, their landlord, Patrick Dale, had no problem with the emotional support animals they brought with them. He knew the HOA allowed dogs for homeowers, but not renters, but figured that an emotional support animal was different and that everything would be OK. He asked Shaw for a copy of her doctor’s letter and she and her husband moved in last June without issue.

“When they informed me I didn’t think twice about it, I said, ‘As long as you have proper documentation,’” Dale said. “I didn’t think it’d turn into this.”

It’s not clear how the HOA learned that Shaw had two dogs — Shaw said the backyard is fenced in and she walks the dogs on a nearby trail, not through the neighborhood — but Dale received a notice from the HOA and CAMS, the management company in late January notifying them that the dogs were “unauthorized” and needed to be removed from the home.

In response, Dale sent Shaw’s doctor’s letter — documentation that is generally required to prove an animal is for emotional support — to the HOA, thinking that would solve the matter.

He was mistaken.

The HOA wrote back that Shaw’s letter was out of date, and that the doctor needed to write an updated letter for them to accept it. Shaw reached out to her doctor in Vermont, obtained a new letter, and sent to the HOA. But the board again rejected it. Throughout February, Dale exchanged emails with the HOA several times, submitting new letters Shaw obtained from her doctor, twice with minor edits the HOA requested.

In one email in mid-February, Painter wrote to Dale that the letter he submitted was insufficient because the doctor had not signed the letter and because it didn’t include Shaw’s full name. Shaw and Dale ultimately submitted three separate versions of the letter before the HOA denied the request for a “reasonable accommodation” of allowing the dogs. Under the law, a reasonable accommodation is an adjustment to a property or policy to make life easier for people with disabilities — like a wheelchair ramp in front of a store — that doesn’t unfairly burden a business, housing provider, or other entity.

By late February, the HOA again rejected Dale’s request for a reasonable accommodation, saying that because the three versions of the doctor’s letter differed, the board couldn’t accept them. Dale shared copies of emails he and his wife, Amy, exchanged with the HOA board regarding the situation.

“Unfortunately, the variation in the content of the letters submitted by her primary care provider, and the seriousness of a possible misrepresentation of an animal as a service animal make it impossible for the Board to be confident in determining the validity of the role these two dogs have regarding your tenant’s disability,” Painter wrote in an email to Dale.

When Dale appealed the decision and asked for a meeting with the HOA, he was denied.

“We (have) been over this several times. They know the rules. They are trying to get us to reverse our decision,” one board member wrote in an email, seemingly sending it to Dale accidentally. “With the information provided to us and them I do not think a meeting with them is necessary. If we keep addressing this issue they are not going to stop until they get (their) way.”

In a final email on the matter, both Barrett and Painter suggested Shaw and Dale file a complaint with the Department of Housing and Urban Development, or contact an attorney. Shaw said she’s filed a complaint with HUD. Dale said he is currently seeking the advice of a lawyer.

At one point, Shaw took matters into her own hands. She had recently given birth to her daughter and was still navigating post-pregnancy health issues, but walked over to Barrett’s home and knocked on her door.

“I said, ‘What else is needed to get this over with?’ And she didn’t have an answer,” Shaw said. She said she asked for a meeting with the HOA board and even offered to have her doctor call Barrett, but Barrett wasn’t interested.

“She said more validation (was needed), because the board is having trouble believing your story. She said there’s too many discrepancies, it’s a story,” Shaw said.

“I’m going to have to exit this conversation, you should contact HUD,” Shaw recalled Barrett telling her. The interaction left her deflated.

“I feel violated,” she said. “It makes you feel like a charity case.”

The law and what happens now

In one email denying the accommodation, Painter questioned whether emotional support animals were covered under the Americans with Disabilities Act. But several lawyers told The Sun News that even if the ADA didn’t apply in this situation, the Fair Housing Act did.

“Generally speaking, a home owners association is bound by the Fair Housing Act,” said Mark Fessler, a housing attorney with South Carolina Legal Services.

Under the Fair Housing Act, a piece of the 1968 landmark Civil Rights Act, a renter is allowed to request that landlord or other housing provider amend their policies to allow for emotional support animals to live in the space. While there are exceptions, if a renter makes a request for such an animal, a landlord must meet a fairly high bar to deny the request. An animal causing significant damage to property or physical harm to a person could allow a housing provider to deny a request, for example.

“They need to make that accommodation unless it’s a serious financial burden, or it fundamentally alters the housing,” Protheroe said. “It’s a pretty high bar…to show that its an unreasonable accommodation.”

Generally, attorneys said, if dogs are deemed emotional support animals by a doctor, housing providers typically have to allow them.

“An emotional support animal is not a pet so any pet policy they have it doesn’t go for emotional support animals,” said Marvin Caldwell, Jr., the fair housing director at the South Carolina Human Affairs Commission. “The Fair Housing Act trumps any policy they have.”

Even though the HOA in this case doesn’t own the home and isn’t directly providing housing to the Shaws, the HOA still has some legal authority over their home, and is therefore subject to the Fair Housing Act, just like the Dales are. In this case, as the HOA has begun fining the Dales for Shaw’s dogs, that creates a situation that could ultimately affect the Shaw’s housing.

“Even though the HOA isn’t the one signing the lease or charging the rent, their actions here have the potential to affect the persons housing,” Protheroe said. “You’re essentially charging someone for their disability.”

For now, the Shaws are focused on raising their newborn, and hope the issue with the dogs is resolved soon. And more than just an annoyance, Shaw said the conflict arising near the end of her pregnancy added to the stress of giving birth and has distracted her during precious moments with her child.

“It’s unfortunate that I didn’t get to soak that in,” she said.

And even though she tried to take matters into her own hands, Shaw wasn’t successful, something that makes the situation even harder to process.

“I feel disrespected. I feel like my life and my personal well-being has been violated which makes me feel yucky,” she said. “I think that’s the worst part is that I personally tried to fix this and make this right and it was still like hitting the brick wall.”

This story was originally published March 22, 2021 at 6:58 AM.