Requests to keep emotional support
animals in condominiums with pet restrictions appear to be on
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
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.
