A recent federal court decision in U.S. v. The Dorchester Owners Association, No. 20-1396 (E.D. Penn. Jan. 25, 2023), is instructive as to how boards of directors can put their associations at risk when they fail to make timely final decisions on accommodation requests or impose unreasonable conditions in granting those requests.
In this case, the requests were for emotional support animals, but the lessons learned here apply to any request for an accommodation under the Fair Housing Act (FHA).
The FHA prohibits refusing reasonable accommodations for disabled individuals, and associations are considered housing providers for FHA purposes. A reasonable accommodation may take the form of a support animal, which is not required to be specially trained or certified according to the U.S. Department of Housing and Urban Development (HUD).
Though pets were initially prohibited by The Dorchester Owners Association, the Association’s Board of Directors established rules allowing assistance animals under specific circumstances in 2009. Louise Hamburg, an owner in the Condominium, requested approval from the Board for an emotional support animal (ESA) in December 2017. After the Board hadn’t approved her after a few months, Hamburg filed a complaint with HUD. Later that year in August 2018, additional residents in the Condominium, Bernard and Cynthia Halpern, also submitted an ESA request to the Association but faced similar delays.
The Board had revised the Association’s Rules regarding assistance animals over the years, eventually imposing height, weight, muzzle, and insurance requirements. After an investigation, HUD charged the association with discrimination, referring the case to the U.S. Department of Justice (DOJ). In March 2020, the DOJ sued the Association for violating the FHA on behalf of Hamburg and other unit owners whom it claimed had been injured by the Association’s alleged discriminatory housing practices.
During the trial, the unit owners’ testimony highlighted the Board’s delayed responses to ESA applications and the imposed conditions. While there was no express discriminatory policy, nor a pattern of discrimination found in this case, the jury did determine that the Association unreasonably delayed in responding to the ESA applications for two of the residents involved. The jury also determined that the FHA was violated when the Association imposed conditions on the Halperns’ ESA. Specifically, the Association required the Halperns to use the freight elevator and the building’s rear doors when the dog was with them.
The Court found that the Halperns were entitled to damages as a result of this violation. The Association was ordered to pay them $37,431.00 in penalties and $2,500.00 for pain and suffering. Additionally, the Association was required to submit a revised accommodation policy for assistance animals that required prompt review and action on every application that was submitted to it in accordance with the policy. Though the jury had found that the Association had violated the FHA, since there was no reckless or callous indifference in this case, the DOJ was awarded a nominal judgment of $1.00.
This Association was heavily penalized in this case, even though it had not been found to have engaged in a pattern of discrimination by the court or to have acted recklessly. One can only imagine how much more significant the penalty may have amounted to if the court had reached the conclusion that there was a pattern of discrimination. The Association may have been fortunate that some particular circumstances arose during the case, such as Hamburg’s original medical provider’s letter being determined to be fraudulent. If it hadn’t been for those extenuating circumstances however, the court may have been even more heavy handed upon the Association, and the punishment much harsher.
Associations should note the importance of promptly reviewing and responding to all accommodation requests it receives from its residents. Acting within a reasonable amount of time may avoid possible liability during the review and evaluation process. This case also underscores the importance of consulting with your community association attorney as soon as possible when evaluating any accommodation request. This area of the law is continually evolving, so make sure to consult with the right legal counsel to help ensure the association is protected from a potentially significant loss.
Author
John L. Finkelmann
Reprinted with permission from MAGWV, PLLC – Condominium & HOA Lawyers, Michigan