 Thank you for joining us for another episode of Kondo Insider. My name is Jane Sugimura, and I'm one of the co-hosts of Kondo Insider, and Kondo Insider is a show about people who live and work in condominiums. And we, in our show, the purpose of our show is to deal with issues that Kondo people have to deal with. Today we're going to be talking about animals in no pets buildings and some issues that, you know, both the residents of the building and the animal owners have to deal with. And my guest today is my good friend and colleague, John Morris. Hi, John. And John is a partner in Ekimoto and Morris LLC. They've been specializing in representing condos, co-ops and community associations for over 30 years. And so they do everything, everything for the community associations. And he and I, many years, for many years, right, John, we were legislative buddies back in the halls of the legislature, you know, advocating for certain bills, you know, relating to condominiums and co-ops, and we did that for years. We spent many a late night at the legislature with our good friends there. And I want to point out too that John was the first condo specialist in the state of Hawaii. So that's something that's, you know, you've got a, you know, pretty much highlighted on your record, right? Yes, that's right. Well, you know, thank you for joining me on the show today. And, you know, the reason why, you know, today we're going to be talking about, you know, issues that come up. And, you know, and in my building, my building is a no-pence building. And I have people coming to board meetings and yelling at us, the board, like, why are, why do we have animals in our no-pence building? And, you know, I have to explain to them. And, you know, sometimes they're not real happy. But anyway, I'm sure we're not the only building that goes through this. So why don't you explain to our audience what creates a no-pence building? I mean, why is there such a thing? Well, the fact that you have animals in a no-pence building, the first step would be, are you truly a no-pence building? Many years ago, I'm sure you'd remember, a state senator was insistent that prohibiting pets in a building required an amendment to at least the bylaws. And not just be done by house rules. House rules could certainly control pets, but to absolutely prohibit pets. The law was changed. This is section 514b hide from 156 to say that prohibitions, as opposed to restrictions, prohibitions on pets must be as a result of an amendment to the bylaws must be included in the bylaws. And in our building, we do have a bylaw amendment. In fact, it was 1978, and we keep trotting it out and showing people who want to buy into our building. But we have a bylaw amendment. And that was before I bought into the building. So I don't know what was the reason for it, but apparently the governing documents allowed pets at one time, but the owners voted to amend their bylaws to prohibit pets. Yes, that's pretty much what we have to do, based on the current law. And it sounds like you're ahead of your time, in fact. Okay, so we have a no-pence building. But that means, by definition, that there are other buildings in Honolulu and in the state of Hawaii that allow pets that are pet friendly, right, that don't have bylaw amendments to say, oh, you can't have pets in the building. Yes, that's probably a larger percentage allow pets. Some associations try to prohibit pets just by a house rule, but that is not legally probably going to work, but you're right. Many buildings do allow pets, so you can't necessarily anticipate that if you're buying into a building, it will or will not be a no-pence building. And so if somebody is looking to rent or buy, how do they know whether it's a no-pence building or not? Well, yes, they should. I'm not sure that would be a standard disclosure, but that would be something that the seller, at least in response to a question, if the prospective purchaser asks, should be able to tell that prospective purchaser whether it is a no-pence building, because it should be stated somewhere in the bylaws, ideally, that this is a no-pence building. So that's what the prospective buyer would have to... What about prospective renters? Pretty much the same thing. Yes, they would be asking whoever the landlord are pets permitted in the building and they would probably be incumbent on the landlord to find out. It may not be something they thought about, but they should be able to find out from the management company, the onsite manager, the board, whether it is a no-pence building. Really, people who rent or buy into condominiums, they have a choice. They can pick a pet-friendly building or they can pick one with no-pence, a no-pence provision. Yes, that's true. They can select based on whether it is a pet permitted or no-pence building. Okay, if that's the case, then why do we have situations where you have animals coming into a no-pence building? Human nature, probably. Particularly if someone likes the building, they feel that it's a building they want to be in. They may try to ignore the no-pence restriction and move into the building. Now, some people do that without knowing inadvertently. Some people are familiar with the process that allows them to essentially change a no-pence building into a pet building or more specifically to an assistance or emotional support animal building. Many people are now aware that under the law, you can have a pet in the form of an assistance animal or an emotional support animal. You can have even in a no-pence building. What law allows them to do that? There's a federal law that allows them to do that and there's also a state law that allows them to do that to say that they need their animal for emotional support or for assistance with a disability that they have. And the definition of disability is very broad and can often mean someone says I'm attached to my dog, my cat. I can't live without it. So that qualifies me as having a disability and that allows me to rely on the state and federal law or permit me to have my animal in a no-pence building. Okay, but what is the process? What specifically do they have to do? Let's say I'm a renner and I decide, oh, I want to live in that building. And when I get there and I have my animal in hand and they tell me, oh, but you can't bring your animal in here because we're a no-pence building. And I'm just going to say, well, I think I can get my animal in. I hear that there's a law and do you have the paperwork? What paperwork is required so that I can have my animal in a no-pence building? Well, in fact, and this is if you look at the Hawaii Civil Rights Commission, informational leaflet on that, it says, does the request have to be in writing and they say no, it can be made verbally. So anyone can just ask. They can say, I need to have my animal with me in your building even though it's no-pence. And then the question becomes, what does a person who wants that animal have to show to the association to justify their right to bring the animal into a no-pence building? And there are essentially three questions which are truly not just for pets, but for other disability-related requests. And the first is, do you have a disability as that is defined in the law? The association would not be permitted to ask what that disability is, but just whether it's a disability is defined in the law. The second question really is, do you need an accommodation, an exemption from the rules, a reasonable accommodation? Because of your disability, and if the answer is yes, I do. Then the third question is, what is the reasonable accommodation and the person who wants to have their animal in the no-pence building says, I need to have my dog, my cat, whatever else, with me because of my disability. And those are essentially the three questions. Are you disabled? Do you need a reasonable accommodation to your disability? And what is the accommodation, which in this case would be the animal, which is often referred to as an assistance animal, assisting the person with their disability, sometimes as an emotional support animal. Service animals do not really necessarily apply in this situation, but that has somewhat changed. Service animal is a similar type of animal, assisting someone with a disability. But some people, what we seem to experience is what we get, we get these letters from social workers, from psychologists, and it looks like a form letter. It basically says, I'm licensed to do this and that. And the resident, John Doe, is my patient or my client, and I have met with him, and he has a disability recognized by fair housing, and he has need of a special needs animal that will alleviate the symptoms of his disability. And so we ask you for a reasonable accommodation. So we get these letters. Yes, that's true. And I should be clear, the owner can ask the resident or potential owner can ask to have the animal verbally, but it is true that they do have to provide the information, the three elements, disability, reasonable accommodation and type of it. They do have to provide that in writing from someone who would be considered qualified to give that opinion, which is not necessarily a doctor, can be a social worker. I believe there's suggestion that it could be someone who is the chair or the organizer of a support group for people who need their animals, but you're correct. The request can be made verbally, but the justification for the request would be often in the form of a letter. The only thing is, as I mentioned before, you could not give someone a form and force them to use your form. You could just say, you have to provide us through your qualified healthcare professional, you have to provide us with the information, this form request, even if you don't use the form, you still have to provide the information. And you know, some of the requests, you know, people letters that we have gotten are, you know, they're my board members have questioned. In fact, we have been getting, I think we've gotten three letters from the same social worker in South Carolina, who happens to be certified in Hawaii. And, and, and I think we've gotten one, you know, and we've gotten people who have traveled or moved, you know, and we have military who live in, you know, who rent in our building. And so, you know, occasionally, we get letters from medical professionals on the mainland. And I guess, you know, my board has questioned, in one case, the letter was over five years old. And then there's the social worker in South Carolina, who is a license, who was certified in Hawaii because she puts her, you know, she puts her license and we've checked on the, you know, DCC website, and it, you know, she's licensed, she's certified. Yes. But we have to accept those letters right. Yes, the problem, what we usually advise associations is it's very difficult, if not impossible to keep the animal out. The best you can focus on is controlling it once it gets in because you are correct. It doesn't say, and nobody really argues that the healthcare professional has to be from Hawaii. And there are questions where they don't even, they just have a telephone interview with the person requesting the animal. It's not even clear that they're really in a sort of ongoing relationship with the person requesting the animal, but it is very difficult to challenge a letter that you receive as long as it covers those three points, you know, this person has a disability, which I'm qualified to say they do, they need a reasonable accommodation and that reasonable accommodation is the animal. So you are correct. Challenging those types of letters, even if they're from someone on the mainland can be difficult. Now they, they did change the law this year. So I thought at least to say that if you just buy a form from somebody over the internet, saying that you need this animal, that may not be sufficient. So that was added to the law. It's in section five 15 three, I think it's subsection nine, possibly, but that does actually say, just something you bought over the internet may not be enough, but in answer to your question. If you're a real person, giving an opinion that the person requesting the animal is disabled requires the animal. It would be very difficult to challenge. And, and, you know, when you say, you know, that, you know, these things are difficult to challenge. I mean, who is it that's enforcing the law. Generally, in Hawaii, at least it is the Hawaii Civil Rights Commission, I think they typically have an arrangement with the federal government with the housing and urban development to act on complaints to the federal government that most of the time in Hawaii, if someone is denied their request for a reasonable accommodation, their assistance animal, they can go to the Hawaii Civil Rights Commission and file a complaint alleging that they have been denied their rights as a disabled person by an association or some other entity so they would file a complaint with Hawaii Civil Rights Commission, the Hawaii Civil Rights Commission will generally appoint an investigator to look into the complaint, and they will then contact the association, asking them to respond to the complaint. So it is in fact disabled people who need an animal to have the right to go to the Hawaii Civil Rights Commission to enforce Hawaii and even federal law that says they are entitled to have an animal to assist them with their disability. And, you know, I, you know, I have to share with you an experience that we had in our building, and this was several years ago. And we had a complaint made to this Hawaii Civil Rights Commission about our association. And my president and I ended up spending most of the day with the Hawaii Civil Rights Commission and our legal counsel appointed by our insurance carrier. And, and, you know, because we really thought that we were set up by somebody who was trying to take advantage of the law and us. And so we were fighting it. And our counsel took us outside and said, hey, the insurance company is willing to pay the 25,000. You guys want to fight this. You do so. It's on your own dime. I'm leaving. And so it was like, you know, I mean, it was almost like, you know, they were beating us up and we really didn't have any type of, you know, recourse, because I mean whatever the Civil Rights Commission decided, you know, was right or wrong. I mean, they were going to punish us. Yes, that's why again, we usually advise associations. You're almost, it's almost impossible to keep an animal out of your building as long as the person provides those three elements that show they're entitled to the animal. So it's probably better not to fight, not to try and prevent the person from bringing the animal in, but just to make sure that if they do, they are respectful of other people and they control the animal and do not allow it to become a nuisance but you are correct. The Civil Rights Commission will impose sometimes significant penalties if they feel there's been a breach of the Hawaii or the federal civil rights laws that permit disabled persons to have animals to assist with their disability. And those investigations can take a lot of time. They can drag on for a while. I don't think it's appropriate or too often don't go to court because sort of as in your case, the attorney or the insurance company will say that this is a losing proposition and try and settle the case. The Hawaii Civil Rights Commission can be fairly aggressive in pursuing these types of claims if they believe there's been a violation of the fair housing laws, state or federal. That's true. Right. And I want to just interject right now that you know the Hawaii Council is doing a seminar on November 17 with fair housing. And so if our listeners want to come to the seminar we're going to have the Civil Rights Commission participating. We're going to have Leo a and we're going to have Eric for our, who is an attorney who represents homeowners, you know, in these disputes with associations about reasonable accommodations. And you know so you know people want, want to see, you know how how how it works I mean, or, you know, see how the Civil Rights Commission deals with these issues. They should attend our seminar. Yes, I would certainly recommend that because hearing it straight from the horse's mouth is probably going to help people get the context they'll understand the psychology or the way in which the Civil Rights Commission review views these types of issues that will probably and legal aid of course will also become involved if, if somebody does complain and there are sometimes cases where legal aid will file a lawsuit on behalf of someone who's been denied the right to an animal. So that's a very good seminar I would think, well worth attending for boards property managers sounds like a good program. And you know, you know, because you know and the reason why I wanted to talk about this today is we have owners coming to the board and saying we're a no pets building I bought into this building because I'm allergic to animals or I bought into this building because I don't want to be in a building with animals so how can we get all these dogs. And they're beating us up and when we tell them well you know, we really don't have a choice if they, you know, comply with the law and they come with a letter and, you know, things we don't have a choice. And they're saying oh no you guys are easy you're just rolling over you're letting them beat you up. And, you know, so, so you know, it's becoming a problem, like our bill you know that's going to be at 16 dogs. And so I have a bunch of, you know unhappy owners, and what happens is, there's this tension between the people who have animals, and the other residents. And so it's like, you know, we all got to get along we live in the same building. So have you got any tips on how we can coexist because it's not like we can make the animals leave. If they've met the requirements it would be almost impossible to make the move. There are things you can request. And this is in the handout from the Civil Rights Commission, you can ask animal owners to observe all laws leash laws pickup laws, assume responsibility for the animal, keep their dwelling unit clean, don't allow it to become a messy thing, clean up the animals waste, have the animal licensed have it vaccinated with documentation showing that's been done. Have it under the control of its handler, unless for some reason, the person's disability makes that difficult for impossible, and having the animal meet minimum sanitary standards and, although not stated there, it is important to have people who bring their animals into a no pets building to respect the rights of others because there are people who are allergic to animals who are afraid of animals they might have been bitten by a dog. I personally used to be a paper boy so I'm not too wild about dogs myself. So I think that is something that the board has to stress to those who bring animals into a no pets building that even more so than in a pets building they should be respectful of the rights of others for example if someone is truly allergic to an animal they would have a claim. They are disabled and they are entitled to have their disability recognized and appropriate steps to prevent so for example someone in your building and no pets building with a dog should not allow that dog to get close to someone who is truly allergic to that animal and that's one of the things that if you just don't like dogs. That's not necessarily going to be enough but there are cases I took a quick look before this. There are cases dealing with this there was an Iowa Supreme Court case which sites but it says that the reactions of other residents are relevant in determining whether someone can have a support or emotional support animal in the building. And so the rights of other owners do not have to be sacrificed on the altar of a reasonable accommodation. There might be one thing that a board could consider doing if there are no pets building, but people are in the building, have assistance or emotional support animals is laying out what the board expects. I think you should convey to those owners who don't want to have animals that it may not be easy to get rid of that animal. But it may be reasonable to require the animal owner to control the animal in a way that does not cause problems for others. That's one of the things then the. There is a thing where the Hawaii Civil Rights Commission has a rule on when certain animals refusal to allow the use of a particular animal. It imposes quite a high standard. The animal would have to be a physical threat to the health of safety of others impose an undue financial burden on the association cause substantial damage if it damaged the property. But one of the things to give you an idea. If someone with an emotional support animal in your building bites another emotional support animal, you could at least require that biting animal to have a muscle at all times on the common elements. You could not necessarily according to this rule require the animal to be removed immediately. I'm not sure whether that would apply if the animal bit a person as opposed to another animal. But these are things you have to convey to people that it may be extremely difficult to get rid of the animal. It would be much easier to control the animal when it's in the property. The reasons you know one of the suggestions to is you know before this situation gets out of hand, the association should have a set of rules and policy relating to animals in the building, whether you're no pets building or a pet friendly So as to control these situations when the animals misbehave or the animal owners don't comply with, you know, being respectful to the other residents. Yes, you do your firm does and a lot of other condo association attorneys do right. There's an association out there who doesn't have a policy and a set of rules to deal with animal behavior on on premises, they would probably, you know, you're, you know, you would you suggest that they contact their attorneys and get this package. I think they should contact their attorneys because it will. I mean in the long run you want to as much as possible have everyone in the building, recognizing the rights of everyone else and trying to get along and I think if you have a set of ground rules for people who bring animals into a building whether it's a no pets building or not. It would be worth doing so that everybody has an understanding of how things are supposed to work. And again the voice of rights commission does recognize the right of an association or other residents to have certain restrictions on animals. So you are I would agree with you that it would be worth the association talking to their attorney and developing a set of rules that allows everyone to coexist in the building, despite the fact that some people do not want animals and others to. So that would be worth it. Okay well john you know we've run out of time and I really appreciate you coming on on on our show today to talk to us about these, you know, about this issue, because like I said I'm sure I mind my building is not the only one, you know where we're dealing with this. And, and, and people say well they're pet friendly buildings out there why can't they go over there as well. You can't require people you can't force people to me they want to live in here and they find out it's a no pets building. I mean, and, and, and they meet the requirements we have to do the reasonable combination. It's not, you know it's not a choice I mean if they meet the. We have to comply with the law. And I think it would be worth suggesting they go to the seminar your planning so they can hear it directly from those who do enforce. Right. The horse's mouth. Yes, that would be worth doing I think people who do not understand why the animals are allowed in the no pets building they would learn straight from those who enforce the law. Okay, well thank you john from again. And you're always, you know, a bright light when when you show up on our condo insider shows. Thank you very much. Thank you thank you so much. Okay, for joining us. And for our listeners, I asked you to tune in next week, and for another episode of condo insider. So like I said, for people who live and work in condos, and we hope that you know we're able to provide you with information to make your lives a little bit easier and answer some questions you may have. So, thanks again for joining us and make sure you tune in next week for another episode. Mahalo and Aloha. Thank you so much for joining us.