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
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.
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
