Requests to keep emotional support animals in housing with pet restrictions remain on the rise. A recent Massachusetts Commission
Against Discrimination (“MCAD”) ruling serves to underscore the notion that property owners and property managers are generally well advised to grant reasonable accommodations in order to avoid running afoul of state and federal fair housing laws.
In a late-December decision, the MCAD hearing officer Jason Barshak awarded $47,500 in damages to a tenant and her boyfriend due to the failure of a landlord and property manager to reasonably accommodate the tenant’s request concerning her boyfriend’s dog. In Fortin v. Marty Green Properties, the hearing officer found the respondents liable under G.L. c. 151B, §4(6)(B).
Hang Ngo (“Ngo”) was the owner of an apartment complex located in Northbridge. The complex – which consisted of two adjacent buildings, each containing six units – is managed by Marty Green Properties, LLC (“MGP”). Mr. Ngo rented a unit to Nicole Evangelista (“Evangelista”). The lease between the parties – like all the leases for the complex – did not permit pets.
Evangelista resided in the apartment unit with her three children. In 2015, she met Joshua Fortin (“Fortin”) and they subsequently began dating. Roughly one year later, Fortin moved into Evangelista’s apartment.
Fortin has Type 1 diabetes. Thus, if his blood sugar level becomes too high or too low, he can suffer severe consequences. Fortin owned a pit bull named Sam (these cases always seem to involve pit bulls). According to Fortin, Sam was able to detect when Fortin’s blood sugar levels were dropping. For example, if Fortin’s blood sugar levels dropped during his sleep, the perceptive pit bull would purportedly awaken his owner. Fortin’s doctor issued a letter explaining that it was medically necessary that Fortin have Sam with him at all times.
While diabetic alert dogs actually do exist, the hearing officer – based upon expert testimony presented at the hearing – did not find that Sam actually possessed such blood-sugar-sniffing skills. He did, however, find that Sam provided emotional support to Fortin as he believed that his dog had these life-saving powers.
Marty Green (“Green”), the principal of MGP, learned of Sam and initially advised Evangelista that Sam would need to leave or she would receive a notice to vacate the property. As a result, Fortin and Sam moved out for a couple of months, but ultimately elected to return to the apartment after Fortin obtained a certificate listing Sam as a service dog. Additionally, other dogs (a pug and a black lab) were apparently living in the complex at that time. Upon learning that Sam had returned to the property, however, Green instructed Evangelista to vacate the property. This instruction was followed by a formal notice to terminate tenancy at will.
Evangelista, Fortin (and Sam) never actually vacated the apartment as they filed the subject MCAD complaint prior to the date that Evangelista’s tenancy was set to expire.
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. It is worth noting that – although the Fortin case involves an apartment complex – these laws would be equally applicable in a condominium setting.
Under the state and federal law, it is considered discrimination for a property owner 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 Sam – 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 four-day hearing, the hearing officer concluded that Ngo and MGP failed to provide a reasonable accommodation and that they were therefore liable to the complainants pursuant to Sections 4(6) and 4(7A)(2) of G.L. c. 151B. The officer concluded that (1) Fortin had a handicap (diabetes), (2) Green was aware of Fortin’s handicap, (3) the accommodation was reasonably necessary to afford Fortin an equal opportunity to enjoy the premises, and (4) Green refused to make the accommodation. He noted that “establishing that a requested accommodation is necessary ‘requires at a minimum, a showing that the desired accommodation will affirmatively enhance a disabled tenant’s quality of life by ameliorating the effects of the disability.’” As mentioned above – although Sam didn’t actually possess any special skills – the officer found that Sam “ameliorated the emotional effects of the disability and enhanced Fortin’s quality of life” because Fortin believed Sam had the ability to detect blood sugar levels (“[a]lbeit in a placebo like manner”).
He found that Ngo was liable to Evangelista and Fortin to the extent that Green violated their rights under G.L. c. 151B through Ngo’s relationship with MGP. As the property owner, Ngo could not delegate to MGP her duty to comply with fair housing laws.
The hearing officer noted that Green inappropriately failed to engage in requisite conversations with the complainants concerning their request for a reasonable accommodation. Green did not indicate any willingness to engage in discussions toward seeking a resolution – in contravention of case law that required participation in an interactive dialogue process.
While Fortin was not a tenant, the hearing officer concluded that he had standing to advance a claim under Section 4(6)(b) as that provision addresses discrimination “against any person.” Fortin was a member of a protected class given his disability (i.e., diabetes). He also found that Evangelista could advance such a claim – despite a lack of a disability – because the case law supported a determination that the tenant could not have lesser rights than the non-tenant boyfriend (“[o]therwise, the landlord would be able to evict with impunity the tenant or lessor for violation of the policy which would lead necessarily to the displacement of the disabled person”).
The hearing officer found that Green’s actions in pursuing multiple actions against the complainants for unpaid rent after the MCAD complaint was filed constituted actionable retaliation (for which Ngo and MGP were also liable). Although Evangelista had indeed failed to timely pay rent, Green’s efforts in attempting to collect same were far more aggressive than prior to the complainants’ initiation of the MCAD action and, as such, Green’s conduct was pretextual.
The hearing officer awarded emotional distress damages to the complainants – $20,000 to Evangelista and $10,000 to Fortin respectively. The officer made all three respondents jointly and severally liable for those damages. He also imposed civil penalties against Green ($7,500), MGP ($5,000), and Ngo ($5,000). Additionally, he ordered the respondents to attend training concerning disability law requirements.
As provided above, the law concerning reasonable accommodations applies to condominiums as well as apartment complexes. Condominium boards are well served to 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. As the decision in Fortin makes clear, this individual attention must include an interactive dialogue process.
The respondents have reportedly already filed a notice of appeal in the case.
A member of REBA’s Condominium Law and Practice Section and a principal at Moriarty, Troyer & Malloy LLC, Dave specializes 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. His email address is drogers@lawmtm.com.