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Condo Associations and HOAs can Violate the Fair Housing Act by not Timely Responding to a Unit Owner’s Request to Keep a Service Dog
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Condo Associations and HOAs can Violate the Fair Housing Act by not Timely Responding to a Unit Owner’s Request to Keep a Service Dog

May 29, 2014 Community Association Industry Legal Blog

Reading Time: 5 minutes

On March 19, 2014, the U.S. District Court for the Southern District of Florida issued an opinion of which all condominium association and HOA board members should be aware.  That case, Sabal Palm Condominium of Pine Island Ridge Association, Inc. v. Fischer, involved a resident’s request to keep a service dog due to her disability.  The court ultimately determined that the condo association violated federal law in its unsatisfactory response to that request.  Specifically, the court held the condo association’s actions violated the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”).

The facts in this case involve Mr. & Mrs. Fischer’s request to their condominium association to allow Mrs. Fischer to keep a service dog as a reasonable accommodation under the FHA due to her multiple sclerosis and being confined to a wheelchair.  Case No. 12-60691-Civ-SCOLA (S.D. Fla., March 19, 2014).  The association, however, has a strict no-pets policy as set forth in its declaration and bylaws.  Id.  Mrs. Fischer notified the association by letter that, under the FHA and pursuant to her doctor’s advice, she was bringing home a trained service dog to assist her with her tasks of daily living.  Even though Mrs. Fischer’s disability was visibly clear, including the fact that Mrs. Fischer was confined to a wheelchair, the association replied by requesting extensive documentation “from all of her healthcare providers who diagnosed or treated the disability that she claimed made a service dog necessary.”  Id.  The Fischers responded by informing the association that the FHA only authorizes it to make a “reasonable inquiry” to determine whether she was entitled to the accommodation, implying that the association’s unreasonable request was unnecessary, unlawful and only meant to harass.  Id.

The association subsequently instituted a declaratory judgment action to determine whether it had to accommodate her request under the FHA.  Id.  The Fischers made a counterclaim against the association seeking injunctive relief, compensatory and punitive damages, and attorneys’ fees and costs.  The Fischers also brought an individual claim against the board president for his personal vote and actions against Mrs. Fischer’s accommodation request.  Id.

The court began its opinion by mentioning that “there is a growing problem of people using fake service dogs, which has a profound and negative effect on the disabled [and] business and medical communities. . . .”  Id.  The court also noted that after the 2004 decision in Auburn Woods Homeowners Association v. Fair Employment and Housing Commission, where it was held the association discriminated against residents who suffered from depression and other disorders by failing to permit them to keep a small companion dog, “the number of housing disability cases involving companion or comfort animals as a reasonable accommodation has soared.”  Id.  The court acknowledged the rise in such claims gives reason to be skeptical of accommodation requests in certain cases, especially where the accommodation is for “emotional support.”  Id.  The court, however, distinguished the facts in this matter by stating this lawsuit involving the Fischers “is not such a case.”  Id.  The court concisely articulated its view of the association’s handling of Mrs. Fischer’s accommodation request by stating the following:

It is undisputed that [Mrs. Fischer] has a bona fide physical disability that has severe physical symptoms.  And her specially trained service dog does not assist her by providing emotional support:  it assists her by helping her complete physical tasks that her physical disability makes difficult. That [the condominium association] turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society.  And it does a disservice to people like [Mrs. Fischer] who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.

With such harsh words at the outset of the court’s opinion, it was apparent its decision was not going to be favorable for the association.  The court held that both the association and the board president were liable to the Fischers for their refusal of this FHA accommodation claim.  The court explained the materials submitted by the Fischers were more than sufficient to show Mrs. Fischer was entitled to this reasonable accommodation under the FHA and that the dog was professionally trained to assist an individual with a disability such as Mrs. Fischer’s.  According to the court, it was unjustifiable that the board unanimously voted against granting Mrs. Fisher’s accommodation request and then initiated legal proceedings to defend its actions.  Id.

When residents provide sufficient information to approve an accommodation request under the FHA, continuing to delay a decision for months, while requesting even more unnecessary documentation, amounts to a constructive denial according to the court.  Id.  The court held not only was the association liable to the Fischers for its violation of the FHA, but the board president was also liable based on his actions.  “Individual board members or agents such as property managers can be held liable when they have ‘personally committed or contributed to a Fair Housing Act violation.’”  Id.  The takeaway from this case for all associations is summed up by the following words from the court:  “When the person requesting an accommodation provides enough reliable information such that the only reasonable conclusion is that the accommodation request should be granted, the housing provider’s denial of the request or undue delay in making a decision violates the FHA.”  Id.

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