A dog may be one man’s best friend, but to many condominium associations a dog can be a hassle, a nuisance or even a liability. This is true not just for canines, of course, but for all sorts of furry friends. For this reason, many condominium documents incorporate provisions that restrict, or even prohibit, pets from common areas or units. Properly drafted and incorporated in the governing documents, pet provisions have been held enforceable by the courts of this Commonwealth. However, there are certain situations where condominiums may be forced to allow pets regardless of what the governing documents state.
Many people are familiar with the Fair Housing Amendments Act of 1988 (“FHA”). The FHA makes it unlawful for an association to refuse to make “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary” to afford a “handicapped” individual equal opportunity to use and enjoy his or her dwelling. 42 U.S.C. § 3604(f)(3)(B). At first glance, the FHA’s application in a pet situation may seem clear. Individuals who, as a result of a disability, require animal assistance should be permitted reasonable exception to condominium rules. It would be hard to imagine any association that would challenge the right of a blind individual to keep a seeing-eye dog on condominium property. But what about an individual suffering from anxiety, hypertension, depression or alcoholism? Are these individuals afforded the same rights to “reasonable accommodations” to a condominium’s pet policy? The short answer is: it’s certainly possible, and associations would be remiss to flatly deny these requests without at least considering the potential implications under the FHA and state law.
All associations must be aware that the term “handicap” is not limited to physical disabilities. “Handicap” is defined under both federal and Massachusetts law to include “a physical or mental impairment which substantially limits one or more of [a] person’s major life activities.” 42 U.S.C. § 3602(h); M.G.L. c. 151B, §1(17). This broad definition has been held to include the conditions referenced above, as well as numerous other mental and psychological disorders. What this means in many cases is that a “handicap” may not be physically determinable or readily apparent. This can create challenges for condominium boards tasked with evaluating requests for exceptions to an association’s pet policy.
Consider the following example: Tom Katz sends a letter to the Board to inform them that he needs a “reasonable accommodation” from the association’s pet prohibition to adopt and keep Hairball, a 15lb Persian cat who has no training as a “service animal.” In support of his request, Tom indicates that he suffers from anxiety and that Hairball’s company is necessary to treat his condition. Tom also includes a letter from an out-of-state medical provider stating that Hairball is one means, but not the sole means, of treating Tom’s anxiety. The Board, fresh off an enforcement action against another unit owner for pet violations, is seriously opposed to John’s request. They do not believe Tom has met his burden to show Hairball is reasonable or necessary for him to use and enjoy his Unit. Should they write a polite denial letter to Tom and refer him to the provision of the documents prohibiting cats?
The first thing the Board should do when it receives any correspondence which could be construed as a request for a reasonable accommodation is refer it to counsel. The fact of the matter is that each of these requests and the attendant circumstances will likely be unique and different. One thing that is clear from the case law regarding FHA and state law discrimination claims is that a “reasonable accommodation” analysis is a malleable analysis – there is no one size fits all. This means it will be important for an association facing a request to gather as many facts as possible and present them to counsel for proper consideration in light of the law.
While the FHA and state discrimination laws can be unyielding in many respects, both federal and state courts have noted that the duty to make a “reasonable accommodation” does not simply spring from the fact that a unit owner wants the accommodation made. The courts have given some meaning to the “reasonable” component of “reasonable accommodations,” stating in many instances that there must be a nexus between the animal and the disability in order to establish a valid claim under federal law. In addition, reviewing authorities may also conduct a cost-benefit balancing test taking both the association’s and the requesting individual’s needs into account. As noted above, however, there is no “bright line” rule for what is “unreasonable.” In that respect, it is a bit like pornography – the courts just know it when they see it.
With this in mind, we turn back to Mr. Katz: In advising the board on an appropriate course of action we might consider the Massachusetts Superior Court case of Nason v. Stone Hill Realty Ass’n, 5 Mass. L. Rep. 305 (Mass. Super. Ct. 1996). In Nason, the court held that where an affidavit from a doctor did not indicate that a support animal was the sole means of addressing an owner’s disability, then the unit owner had not demonstrated that an accommodation was “reasonable and necessary.” This ruling was made in connection with a preliminary injunction request, however, and the court went on to note that there could be a basis on a “fully developed record for a finder of fact to determine that keeping the cat is necessary given Nason’s handicap.” “[T]he record before the court fails to clearly demonstrate the nexus between keeping the cat and [the Plaintiff’s] handicap sufficient to warrant the court to intervene at this juncture of the litigation.”
In light of the above, Mr. Katz’s board may have some basis for denying his request. However, the board should be aware that doing so may not be the end of the story. It is possible that Mr. Katz could claw back with a discrimination claim against the association. Any given reviewing authority (a court or the Massachusetts Commission Against Discrimination, for example) may have a different perspective on what is “reasonable” and “necessary.” If such a reviewing authority finds that a requested accommodation is in fact “reasonable,” the association may find itself in a hairy situation.