Condominium Board Wins Dispute Over Emotional-Support Dog

By David Rogers

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.

Accommodating Reasonable Accommodations for Service and Emotional Support Animals

By Kimberly A. Bielan

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.