Q. My condo has had a no-pet amendment for decades. A woman recently purchased a unit and has a dog that barks constantly. She signed all the disclosure forms stating we don’t allow pets, but has given the board a note from a nurse practitioner stating that the dog is an emotional support animal. What can we do?
— Seeking Peace and Quiet
A. “A dog may be man’s best friend, but to many condominium associations a dog - or any pet —can be a hassle, a nuisance, or even a liability,” says Scott Eriksen of Perkins & Anctil, PC, in Westford, Massachusetts. “For this reason, many condominium documents restrict or prohibit pets. Properly drafted, 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.
“The Fair Housing Amendments Act of 1988 (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. 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 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. 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. This can create challenges for condominium boards tasked with evaluating requests for exceptions to a pet policy.
“We recommend that any board that receives a request for reasonable accommodation, along the lines noted above, should promptly 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. Thus, it’s 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.’
“Furthermore, a reasonable accommodation is not license to run roughshod over other association rules (such as noise or nuisance restrictions). We counsel clients to negotiate and implement an agreement between the requesting individual and the board to set clear expectations for the parties and have been successful in enforcing the terms of these agreements when it comes to noise, nuisance, or safety concerns.”