In Fox Bay Civic Assn, Inc v Creswell, unpublished opinion of the Court of Appeals, issued May 30, 2019 (Docket No. 343384), the Michigan Court of Appeals held that a homeowners association could enforce its deed restrictions banning fences and that a disabled owner could not erect a fence in order to keep her emotional support and service dogs in her yard. The court held that the construction of the fence did not constitute a reasonable accommodation under the Fair Housing Act, as the owner had reasonable alternatives, such as installing a dog run or invisible fence, both of which would not violate the deed restrictions.
Defendant, Janis Creswell (“Creswell”) was the owner of a lot in the Fox Bay Subdivision. The Fox Bay Subdivision is governed by the plaintiff, Fox Bay Civic Association, Inc. (the “Association”), a homeowners association that was charged with enforcing the deed restrictions for the subdivision. Section 7 of the deed restrictions prohibited owners from erecting fences on unless they submitted detailed specifications to the Association, along with a $ 25 review fee, and the Association approved the installation of the fence in writing. The deed restrictions stated that the purpose of Section 7 is to “insure the development of the subdivision into a beautiful[,] harmonious, exclusive, private residential section.” The Association had previously only allowed fences that surrounded swimming pools, as such fences are required by state law for safety purposes.
Creswell constructed a fence around her backyard without requesting approval from the homeowners association. Creswell had several medical illnesses, including an inflammatory disorder of the nervous system and lupus. As a result, she was prescribed, and owned an emotional support dog. Creswell also had another dog that was a registered service animal. The Association notified Creswell that she had violated the deed restrictions and requested that she remove the fence. The Association advised Creswell that she could install a dog run or invisible fence, which would not violate the deed restrictions. Creswell failed to remove the fence and the Association filed a complaint to enforce the deed restrictions. Creswell argued that she was entitled to keep the fence as a reasonable accommodation under the Fair Housing Act and the equivalent Michigan laws, the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq., and the Civil Rights Act, MCL 37.2101 et seq. Creswell argued that the Association’s offer to install an invisible fence was not a reasonable accommodation because it would not keep other dogs out of her yard. Creswell’s doctor stated that she needs a fence both to keep her dogs enclosed and to protect her and her dogs from other dogs that could attack them. The trial court granted summary disposition in favor of the Association, as it found that the installation of an invisible fence or dog run constituted a reasonable alternative to the installation of a complete fence in violation of the deed restrictions.
On appeal, Creswell argued that the trial court erred in granting summary disposition because the enforcement of the deed restrictions constituted a violation of the Federal Fair Housing Act (FHA), 42 USC 3601 et seq. The Court outlined the standard for establishing a violation of the FHA as follows:
Section 3604(f)(3) of the FHA prohibits discrimination against a buyer of a house because of that person’s handicap or disability. Plymouth Charter Twp. v. Dep’t. of Social Services, 198 Mich. App. 385, 389; 501 N.W.2d 186 (1993). Discrimination under § 3604(f)(3) may include either of the following:
(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises ….
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
Parties asserting claims under § 3604(f)(3) must prove that the modification or accommodation is both reasonable and necessary for them to have the equal opportunity to enjoy the housing of their choice.See Hollis v. Chestnut Bend Homeowners Ass’n., 760 F 3d 531, 541-542 (CA 6, 2014). The question of reasonableness is typically the crux of the matter. Id.at 541. A modification or an accommodation “ ‘is reasonable when it imposes no fundamental alteration in the nature of the program or undue financial and administrative burdens.’ ” Bachman, 252 Mich. App. at 421, quoting Howard v. City of Beavercreek, 276 F.3d 802, 806 (CA 6, 2002). In addressing whether an accommodation is reasonable, a court may consider the benefits of the proposed accommodation against the extent to which the legitimate purposes and effects of the regulation would be undermined by the accommodation. Bryant Woods Inn., Inc. v. Howard Co., Maryland, 124 F.3d 597, 604 (CA 4, 1997). For example, the court may consider “whether alternatives exist to accomplish the benefits more efficiently.” Id. Similarly, in addressing whether a modification is reasonable, the burden that the requested modification would impose must be weighed against the benefits that it would provide to the disabled individual. Hollis, 760 F.3d at 541-542. In either circumstance, the question of reasonableness is a fact-specific inquiry that must be determined on a case-by-case basis. Bachman, 252 Mich. App. at 418; Hollis, 760 F.3d at 542. A disabled individual is “not entitled to the accommodation of his or her choice, but is entitled only to a reasonable accommodation.” Weiss v. 2100 Condominium Ass’n., Inc., 941 F. Supp 2d 1337, 1343 (SD Fla, 2013). “ ‘A failure to provide a reasonable accommodation only becomes unlawful discrimination when it impairs a person’s use and enjoyment of a dwelling.’ ” Bachman, 252 Mich. App. at 418, quoting Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F Supp 756, 760 (D Del, 1996).
In analyzing Creswell’s argument, the Court of Appeals held as follows:
Essentially, defendant is arguing that plaintiff should simply overlook her construction of the fence in clear violation of the deed restrictions, including not submitting a request to build one, and approve her actions after the fact.The crux of the matter is whether ignoring the requirements of the deed restriction under the circumstances presented would be both reasonable and necessary for defendant to have an equal opportunity to enjoy the use of her property. We conclude that defendant has not established a genuine issue of material fact with regard to reasonableness or necessity.
…Approving defendant’s actions after the fact and without the consent of her neighbors would undermine the purpose of the deed restriction and threaten the benefits property owners derive from enforcement of the restriction. Turning the deed restriction into a deed suggestion would undercut plaintiff’s authority to enforce the restriction to ensure an aesthetically pleasing and “harmonious” subdivision, as it would invite residents to act now and seek plaintiff’s approval later. Weakening the practical effect of deed restrictions would either fundamentally alter the aesthetic nature of the subdivision or impose “undue financial and administrative burdens” on plaintiff in the form of heightened watchfulness for unapproved structures and additional efforts, including legal actions, to enforce the deed restrictions. In other words, simply approving the fence after the fact would undermine the legitimate purposes and effects of the requirement to seek and obtain preapproval before erecting a fence or other structure named in the deed restriction….
In addition, defendant has not shown the existence of a genuine issue of material fact that approving the fence after the fact is necessary for her to have an equal opportunity to use and enjoy her home. See Bachman, 252 Mich. App. at 421; Hollis, 760 F.3d at 541. The necessity element for disability discrimination under the FHA “requires that an accommodation be essential, not just preferable.” Vorcheimer v. Philadelphian Owners Ass’n., 903 F.3d 100, 107 (CA 3, 2018). “Gauging necessity … requires considering whether another alternative on offer satisfies the goal of equal housing opportunity for that tenant.” Id. at 108. As will be discussed below, defendant has not raised a genuine issue of material fact that there are not reasonable alternatives to her fence, alternatives that provide her an equal opportunity to use and enjoy her home while also complying with the deed restrictions. Because there are reasonable alternatives to her fence, plaintiff has not shown that ex post facto approval of her fence is necessary to satisfy the goal of equal housing opportunity. Id.
Moreover, the court held that the installation of the fence was not a reasonable modification. The Court held that:
“To determine the reasonableness of [a] requested modification, the burden that the requested modification would impose on [plaintiff] (and perhaps on persons and interests whom [plaintiff] represents) must be weighed against the benefits that would accrue to the [defendant].” Hollis, 760 F.3d at 541-542. Loren v. Sasser, 309 F.3d 1296 (CA 11, 2002) is instructive in this regard.
One of the plaintiffs in Loren suffered from severe disabilities, needed a guide dog, and wanted to build a fence in the front yard for herself and the dog. Loren, 309 F.3d at 1298. The deed restrictions, however, dictated that the homeowners association must approve any fence. Id. A proposal was submitted, but the association denied the request, stating that the deed restrictions prohibited a fence in the front yard and that, because the plaintiffs lived on a corner lot, the fence may inhibit the visibility of drivers at the nearby intersection. Id. at 1298-1299. The association communicated to the plaintiffs that they could instead construct a fence on the side or at the back of the house, neither of which was prohibited by the deed restrictions. Id. After the plaintiffs sued the association, contending that the denial was a violation of the FHA, the court held that no discrimination had occurred under § 3604(f)(3). Id. at 1302-1303. The court reasoned that a fence in the back yard was a reasonable accommodation as it would provide for the plaintiff’s disability, namely, allowing the plaintiff to be outside with her dog, while still being in conformity with the deed restrictions. Id. The fact that it was not the plaintiffs’ preference did not render the accommodation unreasonable. Id.
In the case at bar, there is no dispute that, because of her disability, defendant has a service dog and an emotional support dog and needs some means of allowing them to go outside without supervision. Certainly, defendant’s fence would be a modification that serves her purpose, but it violates the deed restriction and the rights of other property owners to enforce that restriction. See Hollis, 760 F.3d at 541-542; Bryant Woods, 124 F.3d at 604. Plaintiff suggested reasonable modifications that would provide for defendant’s disability while complying with the deed restrictions, namely, that she put in an invisible fence or a dog run. Either of these would allow defendant’s dogs to be outside unsupervised, and defendant has not adequately explained why either of those alternatives is insufficient. With regard to an invisible fence, defendant has asserted that it is insufficient because it will not keep other dogs out of her yard and away from her dogs. However, to the extent residents are subject to the risk of unaccompanied dogs coming onto their property and approaching their dogs, it is a risk faced equally by all dog owners in the subdivision, unrelated to whether they are disabled or able-bodied. Moreover, a dog run arguably would eliminate this concern. Defendant states in her brief to this Court that she informed plaintiff that a dog run “would not work due to her condition.” But this vague dismissal of what seems to be a reasonable alternative to a fence that also comports with the deed restriction and the aesthetics of the subdivision…Plaintiff has shown that reasonable alternatives exist which would better balance defendant’s needs to let a dog outside unsupervised with the need to control and preserve the aesthetic uniformity and character of the community. See Loren, 309 F. 3d at 1302-1303.
Michigan condominium and homeowners associations are frequently faced with requests from owners relating to emotional support and service animals. Fox Bay Civic Assn, Inc v Creswell, unpublished opinion of the Court of Appeals, issued May 30, 2019 (Docket No. 343384) is important as it demonstrates that owners are entitled to a “reasonable accommodation” and not an “absolute accommodation” under the Fair Housing Act. As indicated by the Court of Appeals, a dog run or invisible fence were reasonable alternatives. Accordingly, when considering requests for emotional support and service animals, condominium and homeowners association should be mindful that they do not have to grant every request, but should examine the reasonableness of each request based on the unique facts of each case.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine in 2018 and 2019, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 480-8758 or email@example.com.