I have written a number of times on this blog about providing reasonable accommodations for “service animals” and “emotional support animals.” This legal battle continues to affect condominium and homeowner association communities. A recent case shows a new way that a condominium association could get in trouble for refusing to provide a reasonable accommodation: because of a neighbor’s blog post.
Estate of Walters v. Cowpet Bay West Condominium Association, begins with the “usual” issue. Two condominium unit owners sought to keep “emotional support dogs” in the condominium. The condominium’s rules absolutely banned pets. In this case, the Court determined that the unit owners were disabled, and that the support animals were necessary to allow them the use and enjoyment of the condominium unit. Because of this, the condominium association was required to make a reasonable accommodation under the Fair Housing Act.
The concerning part of this case arises from the blog of some disgruntled neighbors. The opinion from the United States Court of Appeals, Third Circuit, quoted a number of blog posts from residents of the community that opposed the emotional support dogs. One neighbor replied on a blog post “isolate them [the unit owners] completely to their little “dog patch” on the beach and ignore them at every venue or occasion!”
As I mentioned above, the Court easily found that the unit owners were entitled to a reasonable accommodation from the no pet rule for their emotional support animals. The unit owners also brought a retaliation claim against the board of the association as well as the neighbors who published the blog. Under federal law, it is unlawful to “intimidate, threaten, or interfere with” the enjoyment of a right protected by the Fair Housing Act.
This case, and especially the cases preceding it in the District Court for the United States Virgin Islands, discussed whether the association’s requirements could be seen as interference under the Fair Housing Act. To be in violation of the Fair Housing Act, the interference needs to be in retaliation for the unit owners’ request for an accommodation. This saga pointed to potential instances where an association could retaliate against a request for a reasonable accommodation. Some of the ways that an association could interfere with a unit owner’s rights under the Fair Housing Act might be:
– requiring extensive forms
– requiring unreasonable proof of the need for an emotional support animal
– animal licensing or registration requirements
– delays in approval of reasonable accommodation requests
– requiring additional fees for animals
These actions and things like that could be seen as retaliation and, therefore, a violation of the Fair Housing Act. While this specific case did not find the association liable, it certainly discussed ways in which an association could be found guilty of a Fair Housing Act violation.
Also, in this case, some complaining unit owners established their own blog to complain about the emotional support animals. The Court found there was an issue of fact (meaning that the case needed to go to trial) about whether the neighbors illegally coerced, harassed or interfered with the unit owners’ rights under the Fair Housing Act. In this case, the association was not accountable for the blog comments. But, if these types of comments made their way onto a community sponsored blog, website or message board, I fear that a Court could find the association responsible for the content of that website or message board. In that case, the association could be found guilty of illegal coercion or intimidation under the Fair Housing Act.
As I said, in Walters v. Cowpet Bay, the association was not found to be guilty of retaliation under the Fair Housing Act. But the analysis of the Court points to a set of facts under which an association could be liable. Board members and property managers probably can envision many of the things I have warned against happening in their communities, especially if there is a strong reaction against emotional support animals. This means that, in addition to making the correct decisions regarding service animals and emotional support animals, now an association also needs to be careful about its policies and requirements for requesting reasonable accommodations, and maybe even comments on association-sponsored message boards about unit owners that have emotional support animals. This issue continues to get more and more complex, and is litigated more and more frequently. As a result, associations need to be very careful when they deal with requests for service animals or emotional support animals.