Defendant, Acacia on the Green (“Association”), is a 273-unit condominium in Ohio. The Association has a common grilling area because the Association bans grills on patios and balconies because of, among other things, the fire code. Weiss and Phillips, two Unit Owners, wanted grills on their patios: Weiss asked for a grill and demanded a grill repeatedly over a five-year period and was denied. Weiss was then diagnosed with lymphoma, had to undergo chemotherapy, and learned he had an immune deficiency. Weiss took medication for his lymphoma, but did not use a cane or other mobility aid. Despite his ability to walk, Weiss claimed he had episodes when he was only able to walk a few steps within his unit. In 2018 Weiss sent a letter from his doctor to the Association Board which stated:
The accommodation for Mr. Weiss to have a grill on his patio is necessary due to his disability from cancer and CVID. These two diseases substantially affect Mr. Weiss’s ability to walk. The accommodation will give him full use and enjoyment of his unit.
Phillips also claimed to be handicapped and in need of having a grill on her patio.
When both Unit Owners’ requests were denied, they sued alleging that their requests to have gas grills on their patios was reasonable and imposed little, if any, burden on the Association. The complaint also alleged that the denials caused a “disruption to their full enjoyment and use of their respective dwellings,” as well as emotional distress.
What is Prohibited. The Fair Housing Amendments Act (“FHAA”) prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap….” 42 U.S.C. § 3604(f)(2).
Discrimination is defined as “[a] refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be made necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” § 3604(f)(3)(B).
What Must the Plaintiff Prove to Win:
- That he or she suffers from a disability within the meaning of the FHA;
- That the defendant knew or reasonably should have known of the disability;
- That the requested accommodation may be necessary to afford “an equal opportunity to use and enjoy the dwelling;”
- That the accommodation is reasonable; and
- That the defendant refused to make the accommodation.
Association’s Position in the Case
- The requested accommodation was not necessary to afford the Unit Owners an equal opportunity to use and enjoy their dwelling; and
- The requested accommodation was not reasonable.
- There are three operative elements under the act: “reasonable,” “equal opportunity” and “necessary.”
- To prove the “necessary” element, the Plaintiff must show “that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.”
- Neither Unit Owner meets this test. Phillips because “she has not shown that she is unable to walk to the common grilling area.” She only testified it was hard with a cane while carrying food for cooking. Her doctor also did not state that she could not walk that distance. Since the Association offered her assistance with carrying the food, she could not prove necessity. Similarly, Weiss also could not prevail. He testified that he could generally walk to the common grilling area but had times when he was “too weak to even walk except for a few steps in [his unit].” The court found that on “days when Weiss is not suffering such a periodic episode, a personal grill clearly is not necessary because he can walk to the grilling pavilion. And, on the days when he is experiencing extreme exhaustion and can only walk a few steps within his unit, a personal grill is not necessary because it would not ameliorate the effects of his disability” because the grill would still need to be outside his unit and more than 10 feet from the building – too far based on his own testimony.
- Therefore, the Association was entitled to summary judgment against the Unit Owners because neither Unit Owner could show “necessity” and the Court did not even need to look at whether the request was reasonable.
- If the issue is important to your Association, these cases MIGHT be able to be won, but you need to go in with a plan and be willing to spend the money on discovery to lock in the testimony of the disgruntled unit owner;
- Strictly following a unit owner’s doctor request (Phillips matter) makes it very difficult for the unit owner to show necessity of some other solution.