Even though most private residential Associations are not subject to the Americans with Disabilities Act (the “ADA”), the Fair Housing Act (the “FHA”) still applies and protects owners who have service animals. In some cases, the Association has the right to ask the owner for documentation supporting the need for a service animal, but not always…and the case below illustrates how pressing for documentation when the Association is not entitled to it can end up being quite costly for the Association.
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For years the FDCPA (Fair Debt Collection Practices Act) has been used as a sword by debtors and debtors attorneys as a means of exacting revenge from those creditors attorneys who failed to strictly, and I mean STRICTLY, follow every small detail of the law. It reached the point that one court called it a “cottage industry” for debtor’s attorneys.

The FDCPA was so difficult to comply with, that even the Federal Circuit Court (the 7th Circuit) in one of its opinions literally included in the opinion the language that it recommended that debt collectors (including attorneys) use in order to comply with the FDCPA.  Unfortunately, even the letter that they wrote within the opinion failed to comply with one aspect of the FDCPA illustrating how difficult compliance can be.
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Davis v. Echo Valley Condominium Association, No. 17-12475 (E.D. Mich. Nov. 7, 2018)

Summary

The Eastern District of Michigan court held that a smoking ban demanded by a disabled owner was an unreasonable accommodation for purposes of the Fair Housing Act since the measure was not approved by the owners, and the Association was powerless to impose a ban without an owner vote.

The Facts

Plaintiff owned a Unit in the Echo Valley Condominium Association (the “Association”). Plaintiff complained to the Association that her neighbors smoked tobacco. She alleged that she could regularly smell it and that it exacerbated her existing respiratory health conditions.

Plaintiff informed the Association about her medical issues and asked the Association to address the smoking by creating a rule that all smokers in the Association should be required to seal gaps around doors and windows to prevent smoke from escaping. The Association declined to enforce a rule because neither the Association documents nor state law prohibited people from smoking in their homes.
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The Fair Debt Collection Practice Act (FDCPA) was enacted to protect consumers from unscrupulous debt collectors; as a shield against prohibited acts. However, it is now often used as a sword, by attorneys who are part of a “cottage industry” that simply look for even the smallest of violations and then claim thousands of dollars of attorney fees and damages in their first letter to the alleged violator.
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A Board’s blatant mishandling of an emotional support animal request led to the owner not only having a Fair Housing claim against the Association for wrongful failure to provide a reasonable accommodation, but also a claim for third-party harassment when the Association failed to step in and stop other unit owners from blasting the owner publicly on a blog.

Facts.  In a 2017 case, an owner that lived in a no pets community applied to the Board requesting an emotional support dog, providing a doctor’s letter prescribing the dog. The Board didn’t want to deal with the request and kept putting it off, hoping it would go away. Meanwhile, a Board member told another owner about the emotional support animal request, and the owner, who was an active blogger and upset by the presence of a dog in their community, started blogging about the situation, naming the owner and poking fun at her need for an emotional support dog using cruel and chastising language.
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In New Jersey, the United Stated Bankruptcy Court held in In re. Smiley, 569 B.R. 377 (2017) that a Unit Owner/Debtor can modify the Association’s lien and strip off all but the six month super lien allowed under the state’s condominium act.  The facts at the time were that the Association was owed $9,000 for filed liens and another $4,700 that it recognized as unsecured.  At the time of the bankruptcy filing, the monthly assessment was $250.  The fair market value of the property according to the bankruptcy schedules was $142,000, but it was under water because of a $174,000 first mortgage on the property.  Based on these facts the Unit Owner/Debtor claimed, and the court found, that despite the proper lien filings, the Association only had security for $1,500 ($250 x 6 months).
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A unit owner claimed that she needed an emotional support animal because of a disability, and provided a doctor’s note to the condominium association supporting this need. The unit owner selected a dog as the emotional support animal, and as a reasonable accommodation the association agreed to allow the dog into a no-pet building.  The unit owner demanded the right to take the dog everywhere, including into the swimming pool, making various arguments and attaching various Fair Housing Act articles relating to the need to allow people with disabilities equal access to the property of an association. 
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Under the law in most states, and certainly in Wisconsin, the Board of your condominium association controls any changes to the exterior appearance.  This is generally based on a statute that can’t be changed even by the governing documents.  However, things are changing.  Across the country many laws are being passed that require the Board of Directors of various condominium associations to approve certain changes to the exterior.  This can range from artificial turf to solar panels.  In addition, the world is changing relative to emotional support animals, sexual harassment and security. 
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There are some new HUD (Housing and Urban Development) Rules that went into effect October 2016 which may have a significant impact on Condominium and Homeowners Associations, and although we very much dislike these new Rules for the reasons set forth below, it is important for Associations to be aware of these new liability traps.

The new HUD Rules state that there are two types of harassment (Quid Pro Quo and Hostile Environment) that are now recognized and identified by the FHA (Fair Housing Act).
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