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. The owner sued the Association, the Board members personally and the blogger personally, claiming the Association denied her reasonable request for an accommodation for the support dog, and that the individuals interfered with her rights as a protected disabled person to request an accommodation.
Court Rulings. Interestingly, the trial court had ruled in favor of the Association initially, because the Plaintiff owner tragically had died in the midst of the case (she committed suicide). Therefore, the first issue the court of appeals ruled on was that Fair Housing Act claims survive the death of the claimant—so the trial court’s dismissal on that basis was improper. The appellate court found that there was a factual dispute as to whether the Board’s conduct was an actual “refusal” of the emotional support animal request and sent it back to the trial court to figure out. The court did find that the facts supported the claim that the individuals interfered with her rights as a protected disabled person to request an accommodation, and noted that the blog created a “hostile environment” in contravention of the Fair Housing laws.
Lesson. This is an extreme case, but carries a few important lessons. First, if an owner requests an emotional support animal, deal with the request promptly and do not deny the request unless you have a legally justifiable reason and legal opinion from an attorney to rely upon. Second, if the Board is aware of any of its members or other owners or employees engaging in harassing conduct of a protected class (in this case, it was against a handicapped owner), take affirmative steps to try and stop the offending conduct. If you do nothing, the new Fair Housing rules say that the Association can be held liable, just like in this case.
If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.