Published on: April 18, 2013
“Condominium Association to Pay $1 million in Discrimination Case.” “Justice Department Obtains $120,000 Settlement in Discrimination Suit Against Condominium Association.” “Condominium Pays $20,000 to Settle Fair Housing Complaint.”
To read the headlines, you’d conclude that condominium associations are forever on the wrong end of Fair Housing-related discrimination complaints, and in fact, they do lose often enough to make Saint Jude (the patron saint of lost causes) seem an appealing ally. But condominium boards win some of these battles, and the cases they win can be instructive as well as heartening for boards trying to navigate the litigation minefield that state and federal Fair Housing laws create.
The laws prohibit discrimination based on (among other factors) race, religion, marital status, gender, sexual orientation and disability. And complaints based on any of these factors will be distressing, to say the least. But it is the disability claims that are often the most perplexing and most frustrating for boards, simply because some of the people claiming disabilities don’t actually have them and so aren’t entitled to the “reasonable accommodations” the law requires for a “physical or mental impairment that substantially limits one or more major life activities.”
The disabilities of the wheel-chair-bound resident requesting a ramp or the blind owner seeking a service dog are clear; the disabilities of owners demanding dogs (or cats or gerbils or snakes) to ease their depression, bipolar disorder or anxiety are less obvious. Most of the disability disputes we see result because the board refuses to approve accommodations for owners they suspect just want to have pets in communities that restrict or prohibit them. The following cases illustrate that point.
A Florida Home Owners Association condominium association successfully defended a suit filed by an owner, who said the board illegally refused to approve an accommodation allowing his live-in fiancée to have the emotional support dog she claimed was necessary to deal with her depression and anxiety. A lower court ruled against the association, but an appeals court reversed that decision, ruling (in Sun Harbor v. Bonura) that the board’s request for more information verifying the fiancée’s disability (which the plaintiff refused to provide) was appropriate and permitted by the Fair Housing Act.
Although the law requires accommodations, the court noted, “the duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs’ request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.”
A condominium association prevailed for similar reasons in another Florida case, Hawn v. Shoreline Towers, in which the court found that the board was within its rights in requesting documentation of the claimed disability and an explanation of how the accommodation requested (an “emotional support” dog) would address it. The fact that the plaintiff (Hawn) had previously lobbied for a change in the association’s no-pet rules without mentioning his disability significantly weakened his argument in the court’s view; evidence that the psychologist and chiropractor who submitted letters supporting his accommodation request had seen Hawn only twice and shortly before he submitted his accommodation request didn’t help him.
Potash v. Blair House Condominium likewise involved a request for an emotional support animal, but it was the plaintiff in this New Jersey case who held the higher ground. Unlike the plaintiffs in the two previous cases, Potash provided voluminous documentation from several care providers verifying her disability (depression), the treatments she was receiving for it, and the therapeutic value of the dog she was requesting. The board rejected the accommodation, nonetheless, ordered Potash to get rid of her dog, and threatened to fine and/or file suit against her if she failed to comply. When Potash sued the association, the board argued that her discrimination claim had no basis because, although the trustees had denied her accommodation, they had not actually forced her to remove the dog nor taken any of the actions they had threatened against her.
What You Do – and Don’t Do
The court wasn’t impressed. While the board hadn’t actually fined Potash or forced her to remove the dog, it did reject her accommodation request and actually filed a suit that was subsequently withdrawn. “Thus while Complainant still has the dog in her unit,” the court noted, “she does so under a cloud of uncertainty as to whether the dog will be able to stay.” The court went on to note that the New Jersey Supreme Court has held that “failure to reasonably accommodate or failure to engage in the interactive process in connection with an accommodation request” may constitute a violation of the anti-discrimination laws “even if there is no further adverse consequence.”
These cases illustrate both the possibility of winning disability discrimination cases and the difficulty of doing so. They also highlight what are probably the key questions for boards dealing with fair housing accommodation requests: How much information can you require and what kinds of questions should you ask?
If the disability is apparent, guidelines published by the Department of Housing and Urban Development (HUD) make it clear that you can’t ask anything about it. But if the disability isn’t obvious, which is the case with most requests for emotional support animals, boards have more discretion.
That discretion isn’t unlimited; privacy laws restrict the amount of medical detail you can seek. But boards can and should ask for information verifying that the individual has a condition that meets the legal definition of a disability (substantially limiting one or more major life activities) and explaining how the animal requested will help the individual cope with his/her limitations. The boa constrictor Mr. Jones wants will clearly keep his unit free of mice, but how exactly will it help him deal with his bipolar disorder?
Boards can also ask if alternatives to the animal requested might be equally helpful. Is a Great Dane essential, or might an animal weighing somewhat less than a horse suffice? An individual who already has an animal will argue, and the care providers supporting the accommodation request will almost certainly agree, that the existing bond can’t be broken. But there may be more room for negotiation with an individual who is seeking to acquire a new animal.
- There is also room for boards to establish reasonable restrictions on the animals they approve. They can’t charge extra fees (the HUD guidelines specifically prohibit that), but they can impose guidelines designed to ensure the health and safety of other residents and minimize the negative impacts on them. For example, boards may:
- Require owners to keep their animals either in their units or on leashes at all times.
- Bar Restrict animals (within reason) from lobbies certainand other common areas (such as pool areas).
- Prohibit Attempt to prohibit breeds recognized as “vicious” (although a disabled owner who already owns a “vicious” animal will almost certainly fight any effort to force its removal).
- Require owners to care for their animals and clean up after them.
- Require owners to obtain and show proof of liability insurance to cover property damage or injuries to others caused by their animal.
- For repeated or serious incidents involving the animal, such as Insist on the removal of an animal that threatens or disturbs other residents, for example, by barking incessantly or lunging at passersby, fine the owner and/or demand the removal of the animal from the premises.
What about requiring special training for the support that comfort animals are supposed to provide? That seems a reasonable enough requirement, on its face, but it takes boards into largely uncharted and potentially hazardous territory. Revised regulations adopted by the Department of Justice actually require special training for dogs to meet the definition of “service animals” under the Americans with Disabilities Act. But the ADA regulations don’t apply to comfort animals, and the guidelines make it clear that these regs can’t be used as a basis for denying reasonable Fair Housing Act accommodation requests.
While courts in some jurisdictions have ruled that training is a reasonable requirement for comfort animals, others have held that some animals – dogs specifically – have inherent qualities that enable them to provide emotional support and don’t need special training to do what comes naturally to them.
Don’t Go There
Massachusetts courts haven’t addressed the question and it is impossible to predict how they might rule. Given the uncertainty about whether a training requirement would be deemed reasonable and what kind of training boards might require, we advise our clients to avoid the question entirely.
Boards that reject accommodation requests for any reason will almost certainly be sued for discrimination, and they face potential penalties of as much a $25,000, not including the legal costs they will incur even if they prevail in court. The right decision for boards, although it doesn’t feel right, is often to approve a questionable accommodation request rather than face the litigation costs and liability risks involved in fighting a discrimination claim.
The best defense against a disability discrimination claim is an established process for dealing with accommodation requests. We recommend that boards adopt a resolution detailing their procedures and explaining that the board will require documentation from care providers, may seek additional information, and may propose alternatives to the accommodation requested.
In evaluating a discrimination claim, the Massachusetts Commission Against Discrimination (usually the first venue in which these complaints are heard) and the courts will look for evidence that a board has seriously considered an accommodation request, had a reasonable basis for denying it (if it was denied) and tried to offer reasonable alternatives. Establishing and following uniform procedures for handling accommodation requests may avoid some claims and will strengthen the association’s defense against the claims it can’t avoid.
It is possible, and probably likely, that boards will at some point encounter the fair housing equivalent of the “immovable object meeting the unstoppable force” – one disabled owner seeking an accommodation that has a negative impact on another owner with a different disability. An obvious example: An owner is violently allergic to the emotional support dog another is requesting.
The only thing boards can do in these situations is try to find an accommodation that satisfies both. Maybe the owner seeking a dog could get the comfort she needs from a cat; maybe she can avoid the floor on which the allergic owner lives, or only use the back entrance and the freight elevator. Maybe pigs will fly and peace will prevail in the Middle East. Board members wrestling with these conflicts may decide, understandably, that they need comfort animals of their own.