What Are Reasonable Accommodations for Condominium Residents?

Dawn D. McDonald

Problem: The covenants of our association prohibit pets.  An owner who moved in recently is blind and has a seeing-eye dog that she insists she

should be allowed to keep. When the board cited her for violating the covenants and began fining her, she sued.

Solution: This situation is not unusual, but can be problematic for boards, especially if they do not understand what the law requires. The federal and state fair housing laws require housing providers (including condominium associations) to provide “reasonable accommodations” to residents with physical or emotional disabilities. In most cases, that means the board must ease or waive covenants or rules for residents who require accommodations to ensure that they have “full enjoyment” of their homes. Boards that fail to approve legitimate accommodation requests risk being sued for discrimination, which is no doubt what this owner is alleging.

Many boards reject accommodation requests automatically, because the requests violate association rules. They must look beyond the rules and understand that state and federal requirements override them.  Boards can’t ‘just say no’ if the fair housing laws require them to say yes.

But boards aren’t required to approve accommodations automatically either.   The law anticipates an “interactive process” in which boards can verify that the resident has a disability (if it isn’t apparent); confirm that the requested accommodation will address the disability; and propose alternatives that the board might prefer. 

There are many potential minefields in this process.    For example, if the disability is obvious, as it would be if an owner is blind, the board can’t require the owner to document the disability or ask any questions about it. 

Unlike physical disabilities, emotional disabilities – such as anxiety and depression – aren’t apparent and the board can require a letter from a “medical professional” verifying that the owner has a disability that, in the words of the statute “substantially [limits]” his/her ability to perform “one or more life functions.”  The letter does not have to identify the disability or provide any details about it; it must simply verify that the resident has a disability and that the requested accommodation will help the owner cope with it.

Boards can’t question whether an owner actually has a disability even if they have reason to doubt it (you will never win that dispute); but they can suggest alternatives to the accommodation an owner is requesting – a dog smaller than a Great Dane, for example, or a dog or cat rather than the alligator, snake or kangaroo the owner has requested as an “emotional support” pet.  However, while boards can suggest alternatives, residents aren’t required to accept them.  As a practical matter, boards will usually have to approve the animals residents demand if medical professionals agree the animal is necessary. 

Boards can impose some reasonable restrictions.  For example, boards can require residents to:

·      Care for their animals and clean up after them;

·      Ensure no nuisance is created;

·      Remove an animal that harms, threatens or disturbs other residents;

 

When association clients seek advice in dealing with an accommodation request (which they should do before becoming embroiled in a dispute over it), we usually advise them not to fight if that can be avoided.  The courts and the MCAD almost always side with the owners seeking accommodations and against the associations that want to deny them.  Given that they are unlikely to win these disputes, boards should do what they can to avoid them. 

1.    Establish written procedures for handling accommodation requests and follow them.

2.    Consider requests seriously and handle them respectfully. 

3.    Respond quickly to accommodation requests.  Aim to acknowledge the complaint and initiate the review process within 10 days or less.  Boards are required to negotiate in good faith.  Delays in responding to requests or issuing decisions will suggest that they are not.

4.    Even if you suspect that an accommodation request is bogus – a pretext for obtaining a pet in a community that prohibits them, for example -- treat it seriously. Avoid disparaging comments, such as “We know you’re not really disabled,” that could be cited as evidence supporting a discrimination complaint.

5.    Don’t assume that approving an animal as an accommodation for a disabled resident will require you to approve pets for all owners who demand them.  Boards must waive rules only if residents qualify for Fair Housing accommodations. 

6.    Before deciding to fight an accommodation request, consider:

·      The litigation costs, which will almost certainly exceed by orders of magnitude the cost of the accommodation the owner is requesting. While insurance may pay your legal fees, it won’t pay for the damages and attorneys’ fees awarded if you lose.

·      The negative publicity and lingering ill will that are the unavoidable and harmful byproducts of discrimination suits, which can be as costly in a different way as the litigation.

 

7.    Instead of putting your foot down, which many boards do reflexively, put yourself in the shoes of the person requesting the accommodation. If you or a family member were blind, would you think a request for a guide dog or a parking space located closer to your unit was unreasonable and should be denied?

A partner in the Braintree firm of Marcus Errico Emmer & Brooks P.C.  Dawn  concentrates her practice on commercial litigation, construction litigation and employment law. She can be contacted at dmcdonald@meeb.com

 

What Leases Say Is Important - What they Don’t Say Can Be Problematic

 Dillon Brown 

It has been said so often it is trite but nonetheless true:  An oral contract isn’t

worth the paper it’s written on.  Also, true but not said nearly often enough:  A written lease isn’t worth much either if it doesn’t contain the language needed to protect the landlord.

Residential Leases

What should residential landlords not include in their leases?  Specifically, a newly-enacted Massachusetts law prohibits landlords from charging their broker’s fees to tenants.

Focusing on clauses that leases should include, one stands out because it is so often overlooked by condominium owners who rent their units. These leases should specify that the tenant is required to comply with condo association governing documents.  Failure to include this language can create problems for both the condo association and the unit owner.   

A common example: A tenant who has a dog moves into a community that prohibits them.  If it was the owner who had the dog, the board could simply order him or her to remove the pet and impose fines for every day the owner fails to comply. 

But the association has no relationship with tenants and little authority to enforce association rules against them.   The board can tell the owner to require the tenant to remove the dog, fine the owner if the tenant doesn’t comply, and seek a court order, if necessary, directing the landlord to evict the tenant if the owner doesn’t take corrective action on his own.  Here’s where the lease the owner has, or should have, with the tenant comes into play. 

If the lease contains language requiring the tenant to comply with association rules and the tenant insists on keeping the dog, the landlord will have a solid legal argument for removal and/or possible eviction.  If the lease doesn’t contain this language, however, the tenant can argue reasonably that he was unaware of the no-pet rule.  As a practical matter, many tenants will argue ignorance of the rule even if they were aware of it.  But a ‘compliance with association rules’ clause will strengthen the owner’s position even in the housing courts, where judges tend to favor tenants.  Likewise, demand letters from the association’s counsel seeking enforcement of the condominium’s pet restriction can also strengthen the owner’s case.

·      To protect the association, boards should require owners who rent their units to:

·      Have written leases with tenants for a term of at least a year;

·      Attach a copy of the association’s governing documents to the lease; and

·      Require tenants to sign a statement acknowledging that they have both received and read the governing documents. 

With or without a lease, the eviction process is going to be lengthy and (for the owner) expensive.  But a well-drafted lease with the appropriate language will increase the owner’s prospects of winning an eviction and winning it more quickly, benefiting both the owner and the association.

Commercial Leases

Many clauses in commercial leases are essential for landlords but in an uncertain economic climate, a few stand out.

Early Termination

The lease should specify the damages tenants will incur if they break the lease for any reason before the end of the term.   A standard clause makes the tenant responsible for the rent and all other costs for the duration of the lease term.  The landlord is typically required to mitigate these damages by making reasonable efforts to find another tenant, but this provision doesn’t require landlords to accept any tenant who applies. A good lease would also hold the current tenant responsible for all costs incurred by the landlord to re-rent the space (i.e. broker’s commission, legal fees, cleaning, repairs, etc.).  The language should also specify that if the new rent is lower, the tenant is required to pay the difference. Instead of making the tenant’s potential liability open-ended, some landlords specify a flat fee for breaking the lease (known as a “liquidated damages” clause or “lease break fee”), requiring, for example, six months of rent at the highest possible rate.  Whatever the language, the goal is to ensure that the landlord will not suffer financially if the lease is terminated early.

Reimbursement of Legal Fees

Under standard contract law, plaintiffs are entitled to recover legal fees only if the contract or an applicable statute allows them. The Massachusetts condominium statute specifies that associations are entitled to legal fees related to their collection of common area fees, but no comparable statute applies to lease enforcement actions in either the residential or commercial rental arena.  If the lease doesn’t allow the recovery of legal fees, landlords will have great difficulty demanding them.   This is an issue primarily for commercial leases; the chances that a housing court judge will order an evicted tenant to pay the landlord’s legal fees are roughly slim to less than none.

Rent Escalation Clauses

Landlords don’t need a crystal ball to predict that their operating costs, insurance, taxes and other expenses will increase over time and they want their rental income to keep up.  In Massachusetts, landlords can’t impose a rent increase unless tenants accept it. This isn’t a significant issue for residential leases, which typically have one-year terms.  Tenants who don’t want to accept the increase must move. 

But commercial leases are written for much longer terms – 10 years is standard.  Predicting how much costs will increase that far out is challenging, to say the least.  One option is to specify that the rent will increase by a specified amount every year during the lease term.  Alternatively, landlords can write the lease initially for five years with an option for the tenant to renew for another five years at a rate to be specified at that time. This approach reduces the time a landlord might be locked into a rent that doesn’t cover rising costs.

Personal Guarantee

Residential and commercial landlords vet prospective tenants carefully to ensure their ability to pay the rent.  Residential landlords look primarily at income, credit reports, employment and rental history. There are no guarantees, of course.  Tenants can lose their jobs or encounter medical or other financial challenges no one can predict.  But if things go south over the course of a one-year lease, it’s not the end of the world – at least, not for the landlord who should usually be able to re-rent the apartment quickly.  For commercial landlords dealing with 10-year leases, the calculations are more complicated. 

Landlords can verify that a company is highly successful at the beginning of a lease, but they can’t predict whether the company will still be successful – or even still be in business -- after five years or even after a year, for that matter.  Conditions can change quickly. 

That is why commercial leases should require a “personal guarantee” making someone responsible for covering the lease payments if the company does not.  On a long-term, “triple net” lease (including rent, insurance and taxes), absent an enforceable guarantee, landlords could find themselves out hundreds of thousands of dollars with little prospect of recovering much, if any, of that loss.

If you have any questions regarding landlord tenant law, please contact Dillon Brown at dbrown@meeb.com.

Dillon is a junior partner in the Condominium, Real Estate, and Landlord Tenant Departments of the Braintree firm of Marcus, Errico, Emmer & Brooks P.C.  He focuses his practice on representing condominium associations, condominium developers, as well as residential and commercial landlords. Dillon can be contacted by email at dbrown@meeb.com

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