One of the
trending issues for condominium associations is receiving and making
determinations on reasonable
accommodations for service and emotional support
animals in condominiums with no pet policies.
A proliferation of websites removes many obstacles for unit owners
desiring to obtain a doctor’s note or seeking to “register” their emotional
support animals. The ease with which
such documentation can be obtained presents significant challenges for
condominium associations in determining whether a reasonable accommodation is
appropriately granted, and condominium law practitioners may be faced with
difficult questions relative to same.
This issue is complicated by the fact that condominium associations face
legal action for violation of fair housing laws if they fail to accommodate a
legitimate request.
This article
examines a recent decision of the U.S. District Court, District of Massachusetts
and sets forth recommendations on how to proceed in handling requests for
reasonable accommodations.
In Giardiello
v. Marcus, Errico, Emmer & Brooks, P.C.,
No. 16-12637-JCB, 2017 WL 3610478 (D. Mass. Aug. 18, 2017) the Court
was required to determine whether the allegations in a unit owner’s Complaint
against a condominium association were sufficient to state a claim for
violations of the Fair Housing Act (“FHA”).
Plaintiff Bruno Giardiello (“Bruno Sr.”) owns a unit at the Candlelight
Park Condominiums, a 33-unit condominium in Malden, Massachusetts. The claims in the lawsuit arise out of a
request for reasonable accommodation for Bruno Sr.’s son, Bruno Schneider
(“Bruno Jr.”). Bruno Jr. had been
residing in Florida, but was intending to move to his father’s unit in
Massachusetts. He suffers from
post-traumatic stress syndrome (“PTSD”) and has a service dog, Kyla. Because the Condominium has a no pet policy,
a reasonable accommodation for Kyla was necessary.
According to the
allegations in the Complaint, Bruno Sr. attempted to initiate a dialogue with
the Board of Trustees (“Board”) of the Candlelight Park Condominium Trust, the
organization of unit owners of the Condominium, in October 2015 concerning
Bruno Jr.’s intention to move into the unit and the necessity for a reasonable
accommodation for Kyla. The Board had no
established procedure for submission of a reasonable accommodation request and
failed to timely respond to Bruno Sr.’s requests for a period of months. In January 2016, with no other place to stay,
Bruno Jr. moved into the unit with Kyla.
During this time, and subsequent thereto, Bruno Sr. made repeated
efforts to communicate with the Board concerning the need for a reasonable
accommodation. Eventually the Board
retained counsel, who requested that a Certification Form be completed by Bruno
Jr.’s doctor and returned to the Board.
The letter also contained language to the effect that if the dog was not
removed within ten (10) days, it must be permanently removed, or the unit would
be assessed daily fines.
Due to Bruno
Jr.’s difficulty in making an appointment with a medical provider because it
was flu season, it took some time for him to meet with a doctor. In the interim, the Board sent more letters
and continued to assess fines and threaten legal action. Bruno Jr. obtained a letter from the
Cambridge Health Alliance, which stated that Bruno Jr. had a dog to assist his
psychiatric treatment plan. Upon
receipt, the Board again delivered the Certification Form to Bruno Jr. and
request that it be completed by a doctor.
Bruno Jr. subsequently met with a second doctor who, according to the
allegations in the Complaint, remarked that the nature and scope of the
Certification Form crossed the line of the HIPAA privacy laws. Bruno Jr. insisted that the form be
completed. Upon submission to the Board,
the reasonable accommodation was granted.
In determining
that Bruno Sr. and Bruno Jr. had sufficiently stated a claim against the Board
for violations of the FHA, the Court cited the following elements:
[A] plaintiff must show that (1) he is
disabled within the meaning of the FHA; (2) the defendants knew or should
reasonably have known of his disability; (3) he requested a particular
accommodation that is both reasonable and necessary to allow him an equal
opportunity to use and enjoy the housing in question; and (4) the defendants
refused to make the requested accommodation.
In considering
whether the plaintiffs had alleged facts sufficient to satisfy each of these
elements, it made certain observations about the facts giving rise to the
Complaint. The Court noted that housing
providers, such as condominium associations, have an obligation to provide
“prompt” responses to reasonable accommodation requests. Notwithstanding this obligation, condominium
associations are entitled to seek information from an allegedly disabled person
to determine whether the person is disabled and whether the accommodation is
necessary. The Court noted that, in most
cases, medical records or detailed information about an individual’s medical disability
will be unnecessary. In addition, the
Court stated that, in the circumstances of the particular case, no temporary
exemption or waiver had been granted by the Board while it explored whether a
reasonable accommodation was appropriate.
On the basis of the foregoing, the Court found that Bruno Sr. and Bruno
Jr. had sufficiently stated a claim for violations of the FHA.
The issues
presented in this case are typical of those challenges facing condominium
associations (and their counsel) when a reasonable accommodation request is
sought – boards must balance competing interests while ensuring compliance with
fair housing laws. The case offers
insight into how courts may treat these issues in the future, and offers
observations from which best practices may be gleaned. When an association receives a request for a
reasonable accommodation for a service or emotional support animal, counsel should
advise the association to keep the following in mind:
§ Service animals
and emotional support animals are not the same under the law. Under the Americans with Disabilities Act, a
service animal is a dog that has been individually trained to do work or
perform tasks for an individual with a disability. The tasks performed by the dog must be
related to the person’s disability. An
emotional support animal, by contrast, may not be a dog (cats and other types
of companion animals may be classified as comfort animals) and is not trained
to perform a task or service. Despite
these differences, both service animals and emotional support animals are not pets
(and, thus, not subject to a condominium’s no pet policy) and are both entitled
to reasonable accommodation.
§ A reasonable
accommodation is a change in the rules, policies, practices and procedures, or
services, or a physical modification of a building, for a person with a
disability so that the person will have an equal opportunity to use and enjoy
the common area. Reasonable
accommodations need not be provided if the person requesting the accommodation
poses a direct threat to the health or safety of others, or if doing so would
present an undue financial or administrative burden.
§ Requests for
emotional support animals are typically tied to unseen disabilities, such as
PTSD. Condominium associations should
seriously consider every request for reasonable accommodation and take the time
to consider whether an accommodation is required in the particular
circumstance. Board members must put
preconceived biases aside and objectively consider whether the standard for a
reasonable accommodation has been satisfied.
§ Requests for
reasonable accommodation must be handled on a case-by-case basis. An across-the-board breed prohibition is not
defensible.
§ Prompt response
to requests for reasonable accommodations is important, and a failure to engage
in dialogue with the party requesting the accommodation may constitute a
violation of anti-discrimination laws in and of itself. The Board should establish a formal procedure
for how to address requests for reasonable accommodations and adhere to this
procedure when considering such requests.
The procedure should be uniform and explain that the association may
require documentation, seek additional information, and may propose
alternatives to the accommodation requested.
§ While it may be
permissible to have a uniform certification form, the condominium association
should ensure that none of the information requested would be in violation of
patient privacy laws. In addition, in
the event that the requested information is submitted in a different form, such
as a letter, the association should consider the reasonable accommodation on
the basis of the information provided.
In other words, the board should not be tied to the form, but rather to
the substance, of the information before it.
§ The Giardiello case also suggests that it
may be best practice to grant a waiver or a temporary exemption while the board
examines the request for reasonable accommodation. During such period, the condominium
association should work diligently toward resolution of the matter, should not
impose fines, and should not threaten removal of the animal until the board had
reached a final determination of whether a reasonable accommodation is
appropriate.
§ Requests for
reasonable accommodation may be traps for the unwary, particularly in light of
medical privacy laws and the requirements of the FHA and Massachusetts
anti-discrimination laws. You can offer
your association clients significant assistance in handling requests for
reasonable accommodation.
The
key takeaway is that condominium associations should be diligent in responding
to reasonable accommodation requests.
Often times, such requests may be appropriately granted so that all unit
owners can continue to live in perfect harmony (until the next issue arises…).
Kim Bielan is an
associate in the litigation and zoning and land use departments at Moriarty
Troyer & Malloy LLC. She represents a variety of clients, including
condominium associations, developers, and individual homeowners. Kim’s practice
focuses primarily on real estate litigation, with an emphasis on zoning and
land use matters. She can be contacted by email at kbielan@lawmtm.com.
