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Condo | HOA Lawyers

Emotional Support Animals – If It’s Aggressive, It’s Not Reasonable

Facts

In 2015, Unit Owner’s dog, Maggie, was an 11-year old golden retriever.  Maggie bit another dog living at the Association and had previously “displayed aggressive behavior or injured another dog” at the Association.  After the latest bite, the Association issued a notice of violation that Maggie had to be removed from the Association.  The Unit Owner complied.  But, in April 2016, 11 months later, the Unit Owner snuck Maggie back into his unit.  The Unit Owner alleged that the return of Maggie “significantly” improved his depression for which he claimed the need of an emotional support animal.  In 2017 the Association sent the Unit Owner another notice to remove Maggie or face eviction.  Unit Owner sued claiming the Association refused to accommodate his disability in violation of the Fair Housing Act (“FHA”).

Suit 1

At trial the jury found (yes it went all the way to a jury so this was not cheap):

  1. The removal of Maggie made the residence unavailable to the Unit Owner;
  2. The Unit Owner was disabled under the FHA;
  3. The Association would not have taken adverse action against the Unit Owner but for Maggie; and
  4. Maggie alleviated one or more of the symptoms of the Unit Owner’s disability.

However, the jury also found that Maggie “posed a direct threat to the health or safety of other individuals and no reasonable accommodation would have eliminated or acceptably minimized the risk Maggie posed.”   As a result, the jury found in favor of the Association.

Suit 2

The day after the jury verdict, the Association served notice on the Unit Owner to remove Maggie or face eviction.  Four days later the Unit Owner filed a second suit.  The Unit Owner alleged that Maggie had now received nine months of professional training and had not demonstrated any recent conduct indicating that she posed any threat.  The Association sought the dismissal of the second suit.  It was undisputed that the Unit Owner was disabled under the FHA.  The issue before the court was whether the notice to vacate was “taken because of [Unit Owner’s] disability” as required by 42 USC 3694(f)(1)(A) & (f)(3)(B).  The district court dismissed Unit Owner’s suit, in part because the rules of the Association allowed management to “remove any animal that displays dangerous or aggressive behavior, as determined by Management in its sole and unfettered discretion”, and because no one even alleged the rule was not applied consistently.

Court of Appeals

Affirms.

  1. The Unit Owner insisting on allowing Maggie to live with his was “not seeking a reasonable accommodation but simply [his] preferred accommodation, which is not required under the law.”
  2. This was not retaliatory housing discrimination as Unit Owner alleged because he did not state a claim for breach of the implied covenant of good faith and fair dealing and even failed to “assert a breach of the lease itself.”
LESSONS:
  1. Some owners are willing to go to unbelievable lengths (and EXPENSE) to get what they want;
  2. If the matter involves an owners animal (emotional support or otherwise), regardless of whether their position is objectively reasonable, the limits of that behavior is even further expanded;
  3. If an animal is a danger to the association, a board has very few if any real options, but I would guess these two successive cases cost a great deal of money and time (four years); and
  4. The legal fees charged to the association, cannot be recovered from the owner, which is why associations should do all they can to determine if there is truly something reasonable that can be done before the respective positions of the two sides are so engrained that a suit is the only solution (at least in the mind of one of the parties).
  5. If its Aggressive, Can Any Accommodation be Reasonable?

Friedel v. Sun Communities, Inc. — Fed.Appx. ___  (11th Cir., Fla., 2021)

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