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Tuesday, October 2, 2018

Condominium Board Wins Dispute Over Emotional-Support Dog



Requests to keep emotional support animals in condominiums with pet restrictions appear to be on
the rise, and condominium boards are generally well advised to grant reasonable accommodations in order to avoid running afoul of state and federal fair housing laws.

The condominium unit owner, Pamela Walsh, allowed her tenant, Cheryl Hardnett, to keep a dog in the unit and common areas of the condominium – in violation of a restriction in the condominium’s master deed.

With that in mind, the recently-reported jury verdict in the matter of, Oceanview Condominium Trust v. Walsh was a noteworthy outcome. The case involved a unit owner whose tenant kept an emotional-support dog in violation of the condominium documents. The jury returned a verdict for the condominium association – awarding the association more than $40,000 in fines, attorneys’ fees, costs, and interest.

The condominium unit owner, Pamela Walsh, allowed her tenant, Cheryl Hardnett, to keep a dog in the unit and common areas of the condominium – in violation of a restriction in the condominium’s master deed. The canine at the center of the controversy was a nine-pound Shih-poo named Milo. Ms. Hardnett asserted that Milo was an emotional-support animal that helped her cope with depression, and she provided a doctor’s note to the board in support of her claim. Ms. Walsh contended that Ms. Hardnett was disabled, within the meaning of Massachusetts and federal housing discrimination laws, and advanced a counterclaim that alleged discrimination.

The condominium’s master deed, as amended, and the condominium’s rules and regulations both provided that “[n]o dogs or other animals, birds or pets shall be kept in or about the Units without the written consent of the Condominium Trustees, and consent so given may be revoked at any time.” In 2016, the board recorded an amendment to the rules and regulations – specifically adding language relating to the requirements for a waiver to maintain possession of a service animal and/or emotional support animal. The board alleged that Ms. Walsh and Ms. Hardnett never received written consent from the board to keep Milo in the condominium unit. The board further alleged that – to the extent Milo was an emotional-support animal – the unit owner and tenant never complied with the condominium’s recently-amended provisions to keep such an animal.

Both the state anti-discrimination statute, Massachusetts General Laws Chapter 151B, and the federal Fair Housing Act, 42 USC § 3604 prohibit disability-based housing discrimination. These laws apply to condominiums to the same extent as other forms of housing.

Under the state and federal law, it is considered discrimination for a condominium association to refuse to make reasonable accommodations in rules, practices, policies, or services when such accommodations are necessary to afford a disabled person equal opportunity to use and enjoy the premises, including private units and common areas. The subject resident must suffer from a physical or mental disability that limits one or more major life activities. Reasonable accommodations need not be provided if the request poses a direct threat to the health or safety of others, or if doing so would present an undue burden. Whether an accommodation is reasonable requires fact-specific inquiry and a case-by-case analysis.

A service animal – under the Americans with Disabilities Act – is a dog that has been individually trained to do work or perform tasks for an individual with a disability. An example of a service animal would be a guide dog trained to lead blind people around obstacles. By comparison, an emotional support animal – like Milo – is not necessarily trained to perform tasks or services. An emotional support animal is a companion animal that a medical professional has determined provides benefit for an individual with a disability. Both service animals and emotional support animals may be entitled to a reasonable accommodation.

After a trial at Lynn District Court, the jury found in favor of the Oceanview Condominium Trust, awarding the board $8,000 in fines, as well as $31,393.85 in attorneys’ fees and costs. The jury answered “no” to the special question of whether Ms. Hardnett was a handicapped person within the meaning of 42 USC § 3604 and G.L. c. 151B, §4(7A)(2). Ms. Hardnett had apparently testified that she was not handicapped. According to the board’s attorney, there was no evidence presented at trial indicating that Ms. Hardnett suffered from a condition that substantially limited one of her major life activities.

The judgment and order of the District Court provided that the dog was to be removed from the unit. Ms. Walsh was permanently enjoined from bringing and/or allowing the keeping of any dogs or other animals on the premises of the Oceanview Condominium.

Notably, as mentioned above, the Oceanview Condominium put detailed requirements in place – under their amended rules and regulations – to address requests to keep a service animal and/or emotional support animal at the Condominium. Boards should create policies for responding to reasonable accommodation requests. Specifically, Boards should require unit owners to submit such requests in writing, along with documentation from a care provider that supports the claim of a condition meeting the legal definition of a disability. Each request must be addressed promptly and given individual attention.

Ms. Walsh has appealed the District Court’s jury verdict. Additionally, discrimination complaints have also apparently been filed with the U.S. Department of Housing and Urban Development (“HUD”) and the Massachusetts Commission Against Discrimination (“MCAD”). These matters remain pending.

Originally posted September28, 2018 on tlawmtm.com:
https://www.lawmtm.com/condominium-board-emotional-support.html



For nearly 15 years, Dave has been specializing in complex civil litigation at both the trial and appellate levels. He has extensive experience in the area of construction litigation. Dave’s practice is focused on construction, real estate, and condominium matters. His clients include condominium associations, real estate developers, general contractors, subcontractors, and individuals.

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