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. 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) (link to decision below), 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 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, they should 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 have 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.
▪ Consult counsel! In an article written by an attorney, of course this is the inevitable advice, but it is sound nonetheless. 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.
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…).