A New Jersey condominium association has been charged with discrimination against a disabled resident and violation of the Fair Housing Act after it demanded that the resident’s 75-pound service dog be transported in a carrier while on the common elements.
The Fair Housing Act stipulates that it is unlawful to discriminate against a person in the terms and conditions and the provision of services in connection with a dwelling. Under the legislation, “discrimination includes a refusal to make reasonable accommodations in the rules, policies, practices, or services when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling”.
The condominium association has a no-pets policy, except for pets that had been grandfathered some years earlier. The resident has physical impairments that limit her ability to walk, see and hear and also suffers from depression and dementia. In order to help the resident cope with her disabilities, her doctor prescribed a support animal.
After receiving medical evidence from the resident’s doctor, the association agreed to accommodate her disability by allowing her to keep her dog. However, the association insisted that the resident had to comply with the association’s rules governing pets. The rules require that:
- pets must be contained in carriers while on the common elements;
- pets must be taken in and out of the building only through the west side service door; and
- pets are prohibited in the lobby and deck and are not allowed anywhere on the common elements except during transportation in and out of the building.
Due to the dog’s size, using a carrier to transport the dog was not practical and the resident and her daughter (who had the primary responsibility to take the dog outside on a daily basis due to her mother’s mobility problems) did not comply with this requirement. However, the resident and her daughter did use the side service door when entering and exiting the building with the dog, even though this resulted in a longer and more difficult walk for the resident. The association then proceeded to levy a $100 fine for violating the rule to transport pets in carriers. The association felt that it had satisfied its obligation to reasonably accommodate the resident’s disability by allowing the resident to keep the dog.
This prompted the resident’s daughter to file a complaint with the United Sates Department of Housing and Urban Development claiming that the association’s rules were overly burdensome and unlawful. The case has not yet been heard by a judge.
In Ontario condominium corporations are obliged to comply with the Ontario Human Rights Code (the “Code”). Section 2(1) of the Code provides that every person has a right to equal treatment with respect to occupancy of accommodation without discrimination because of disability. As compliance with the Code has priority over the condominium documents, condominium corporations are required to make reasonable accommodation up to the point of undue hardship for disabled residents. This means that conduct that is otherwise prohibited in the condominium declaration or rules may be acceptable in some circumstances in order to accommodate a disabled resident.
More and more condominium corporations are receiving accommodation requests from disabled residents. The above case is just one of many that we have blogged about where a condominium has found itself “in hot water” after a resident claimed that the condominium had not made reasonable accommodation for a disability. There are a myriad of disabilities and accommodation requests that a condominium corporation could face. Regardless of the nature of the disability and the accommodation request, every situation is unique and must be carefully considered by the condominium board to ensure that the corporation complies with the Code.
