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Dog
Facts

In 2015, Unit Owner’s dog, Maggie, was an 11-year old golden retriever.  Maggie bit another dog living at the Association and had previously “displayed aggressive behavior or injured another dog” at the Association.  After the latest bite, the Association issued a notice of violation that Maggie had to be removed from the Association.  The Unit Owner complied.  But, in April 2016, 11 months later, the Unit Owner snuck Maggie back into his unit.  The Unit Owner alleged that the return of Maggie “significantly” improved his depression for which he claimed the need of an emotional support animal.  In 2017 the Association sent the Unit Owner another notice to remove Maggie or face eviction.  Unit Owner sued claiming the Association refused to accommodate his disability in violation of the Fair Housing Act (“FHA”).

Suit 1

At trial the jury found (yes it went all the way to a jury so this was not cheap):

  1. The removal of Maggie made the residence unavailable to the Unit Owner;
  2. The Unit Owner was disabled under the FHA;
  3. The Association would not have taken adverse action against the Unit Owner but for Maggie; and
  4. Maggie alleviated one or more of the symptoms of the Unit Owner’s disability.

However, the jury also found that Maggie “posed a direct threat to the health or safety of other individuals and no reasonable accommodation would have eliminated or acceptably minimized the risk Maggie posed.”   As a result, the jury found in favor of the Association.
Continue Reading Emotional Support Animals – If It’s Aggressive, It’s Not Reasonable

Emotion Faces

Mental health issues can impact community associations in a myriad of ways.  Often Associations become the “reluctant care provider” (owners have no family/next of kin, or the family “dumped” the owner in the Association rather than in a care facility).  This can be true of older residents (“aging-in-place”) as well of younger residents.  The COVID pandemic, and the corresponding year of lockdowns, has added extra stress and increased isolation, exacerbating existing mental health conditions.  This has led to an increase of emotional distress, substance abuse, and suicides.

Because community associations are communities, issues that arise with one resident can interfere with another resident’s use and enjoyment of their property.  Mental health issues don’t always stay “contained” within the affected owner’s property – noise, shouting, threats, trespassing, damage to property, physical violence – all can interfere with other residents’ quiet enjoyment of their property.  While these issues can manifest themselves as harassment and hostilities, they can also lead to dangerous situations.  [To read more on dealing with harassment and hostile environment, click HERE.]

While it is not the Association’s responsibility to determine if someone has a mental disability, it is the Association’s responsibility to help ensure that all residents live harmoniously. 
Continue Reading Tackling Mental Health and Aging Issues in Your Community Association

Fair Housing

Did you know that homeowners have the right to request reasonable modifications to the common area if they are disabled and the proposed modification helps them use and enjoy the property as it is meant to be?  The federal Fair Housing Act provides as much, and protects disabled condominium and HOA owners who may require such modifications.  How should a Board handle these requests to modify the common area?  A recent case out of the Sixth Circuit provides some guidance.
Continue Reading Reasonable Modifications and the Fair Housing Act—Knowing the Law Can Help Your Association Proactively Avoid Lawsuits

Grill Fire
Facts

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.
Continue Reading YES Associations Can Deny a Request for a Reasonable Accommodation Under the FHA and WIN!!!

Dog by Pool
Facts

Plaintiff, Linder (“Tenant”), entered into a lease in October 2016.  Tenant agreed in the lease not to bring dogs, or other animals on the premises.  Five months later Tenant asked the Landlord if she could have an emotional support animal.  She gave one of the internet letters to support her need for the animal.  The letter said the Tenant was disabled but did not identify the disability or identify any limitations or symptoms of the disability.  Upon receiving the request, Landlord asked the Tenant to consent to his sending the medical provider a letter that asked:

  1. The nature of the mental or physical impairment that is disabling, including a reference to the DSM 5 description of the condition;
  2. A statement of what major life activity this disability interferes with;
  3. Whether the medical provider interviewed the patient;
  4. A statement that the medical provider conducted an examination of the patient appropriate for the diagnosis of the mental impairment in question under the professional guidelines applicable to a Licensed Clinical Social worker and as described in the DSM 5;
  5. That the medical provider photocopy his or her license and send it to Landlord;
  6. Whether a physical exam was conducted of the patient; and
  7. How many sessions the medical provider had with the patient;

The Landlord asked the Tenant to sign the consent letter.  Tenant did not provide the additional information nor sign the consent form.  “As a result, Landlord took no action on Tenant’s request.” Tenant brought a cat in anyway in August of 2017.  The Landlord fined and later evicted the Tenant.  Tenant then filed a complaint against the Landlord for “discrimination on the basis of disability and handicap…”
Continue Reading FINALLY, a Helpful Emotional Support Animal Case

Fair Housing
Facts

Plaintiff, Harmony Haus and a resident, sued Defendant, Parkstone Property Owners Association (“Association”) under the Fair Housing Act (“FHA”) seeking an injunction and attorney fees for violation of the Civil Rights Act.  Association counter sued alleging breaches of deed restrictions.  Plaintiff is a sober living residence for individuals recovering from alcoholism and drug addiction.  Plaintiff residents come directly from an inpatient treatment center.  Association argued Plaintiff was violating its “single family residential use,” its noise and nuisance provisions and its unsightly vehicle provision.  The board of the Association can enforce any violation with a fine.  Plaintiff’s seek exceptions to the Declaration under the FHA by requesting reasonable accommodation, with the specific accommodation to allow 12 residents and 8 cars to be parked on the street.  The Association contends the 8 cars is unsafe and that 12 residents would create an imposition on community resources.  Plaintiff claims the need for 12 residents to reach “critical mass” for its phasing recovery system, so more established residents can mentor newer ones.
Continue Reading Can a Group Home be Built in a Single Family Association under the FHA – YES

Smoking
Summary

If smoking is otherwise allowed in your association, you do not need to ban it as a reasonable accommodation for a person with asthma.

The Facts

Phyllis Davis suffers from asthma but lives in a condominium complex that allows residents to smoke in their units.  Davis claimed that the smoke from a neighboring unit aggravated her asthma.  Davis is a cancer survivor with “a history of asthma and multiple chemical sensitivity disorder.”  When the association didn’t ban smoking in her building she sued alleging that the association had discriminated against her by not granting her reasonable accommodation request to ban smoking in her building thereby violating the Fair Housing Act because of her disability.  Davis also alleged a nuisance claim under the bylaws.
Continue Reading Must Your Association Ban Smoking as a Reasonable Accommodation? NO

Smoking

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.
Continue Reading Smoking Ban Was An Unreasonable Request