Does your HOA need to permit a fence that violates the restrictive covenants as a reasonable accommodation under the Fair Housing Act?
Disputes over whether fences that violate restrictive covenants are a reasonable accommodation under the Fair Housing Act are often tricky for condominium and homeowners associations to navigate. Requests for fences related to individuals with disabilities are becoming more common, as many HOA bylaws prohibit fences, only allow fences for pools, or limit the type of fence that can be installed in a subdivision or site condominium. In Debity v Vintage Vill Homeowners Ass’n, No. 23-5897, 2024 WL 3936828, at *1 (6th Cir., August 26, 2024), the Sixth Court of Appeals considered whether a homeowners association was required to permit a homeowner to install a wooden privacy fence as a reasonable accommodation for a disability. The federal district court granted summary judgment in favor of the homeowners associations and dismissed the case. However, on appeal, the Sixth Circuit overturned the trial court’s ruling as it failed to consider critical evidence from a medical provider. As discussed below, this case identifies the key factors under the Fair Housing Act that a HOA should consider when evaluating whether to provide a reasonable accommodation to install a fence.
Facts
The Debitys were members of the Vintage Village Homeowners Association and had a five-year-old son, G.D., who was diagnosed with nonverbal autism and a sensory processing disorder. Because of his medical conditions, G.D. was prone to running away from caregivers and removing his clothing, and he did not understand the concept of danger. The Debitys wanted to install a backyard fence as soon as possible after purchasing their home due to G.D.’s propensity to run away as there was an unenclosed drainage pond behind their property. The declaration contained the following restrictive covenant:
All fences of any kind must be approved in writing by the Homeowners Association of Vintage Village prior to any installation or construction of the same. Hedges not greater than 4 feet in height shall be permitted, provided they create no obstruction or safety hazard. Decorative fence sections shall be permitted, upon written approval of the Homeowners Association of Vintage Village, but must be erected behind the sidewalk. No chain link fences shall be allowed. Underground fencing for pet containment shall be encouraged. Decorative perimeter fencing installed by the Developer may not be removed or altered.
The Debitys requested a reasonable accommodation to install a wood fence, as it would provide privacy and prevent G.D. from running away. The HOA attorney called Mr. Debity, acknowledged G.D.’s disability, and then stated that the HOA would waive the first year of HOA dues if the Debitys installed a wrought iron fence. Mr. Debity indicated that a wrought iron fence would not solve the privacy issues and that a wooden fence was also necessary to prevent G.D. from entering the street or the drainage pond. Mr. Debity also noted that there was at least one wooden fence in the neighborhood, which had been installed to stop noise pollution and flying debris from a nearby road. After submitting a modification request, the HOA approved a six-foot wrought iron fence, but denied a wooden privacy fence. The Debitys sold the home, moved out without installing a fence, and filed a lawsuit against the homeowners association for violating the Fair Housing Act.
During discovery, the Debitys named Kristin Gregory, PA-C, MMS, as G.D.’s treating medical provider and noticed her as an expert witness, indicating she might testify about his diagnoses, treatment, and need for accommodations. Although they provided an expert report from Ms. Gregory, it was illegible, prompting the HOA to move to strike it and exclude her testimony regarding the requested fence. The trial court ruled that Kristin Gregory could testify about G.D.’s treatment but not about whether he required a six-foot privacy fence. The court also granted summary judgment to the HOA, finding the Debitys failed to demonstrate that a wooden fence was necessary to accommodate G.D.’s disability under the Fair Housing Act.
The Court erred in Excluding Evidence related to the Reasonable Accommodation
The Sixth Circuit held that Kristin Gregory, as G.D.’s longtime treating provider, could testify to his need for a privacy fence based on her firsthand treatment. While the Court held that Kristin Gregory could not provide opinions beyond the scope of her treatment, her recommendation for a privacy fence, like prescribing medication, is part of her treatment plan and within her personal knowledge. Specifically, the Sixth Circuit held:
Just as she might prescribe G.D. a particular medicine to manage the symptoms of his autism, her fencing recommendation is part of her treatment plan for his sensory processing disorder. Gregory’s proposed testimony properly related to her own first-hand observations and treatment—it was not related to complicated causation judgments.
The court found this to be permissible lay testimony. It reversed the trial court’s exclusion of her testimony, ruling that it was an abuse of discretion to conclude she lacked sufficient experience to opine on the necessity of the fence.
Sixth Circuit Reverses Summary Judgment in Fence Dispute Involving Disabled Child’s Privacy Needs
The Fair Housing Act prohibits discrimination “against any person in the terms, conditions, or privileges of sale … of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.”2 42 U.S.C. § 3604(f)(). This includes “a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied … by such person if such modifications may be necessary to afford such person full enjoyment of the premises” and “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.”Id. § 3604(f)(3)(A), (B). The Debitys alleged Fair Housing Act violations under reasonable modification and reasonable accommodation theories. Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir. 2014).
The Sixth Circuit held that the Debitys must establish that (1) G.D. had a disability, (2) they requested a modification on G.D.’s behalf, (3) the HOA refused to permit the requested modification, (4) the HOA knew or should have known of G.D.’s disability at the time of refusal, and (5) the requested modification was reasonable and necessary to afford G.D. an equal opportunity for enjoyment. The Court held that the trial court was required to examine whether the requested accommodation or modification would redress injuries that would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive.
In analyzing the above elements, the Sixth Circuit held that the trial court erred in determining that the requested modification was not reasonably or necessary as a matter of law. The Sixth Circuit held that the trial court only addressed evidence related to the security concern but ignored evidence pertaining to the privacy concerns and G.D’s propensity to disrobe. The Sixth Circuit held that a reasonable jury could find that the HOA-approved see-through, wrought-iron fence would not provide adequate privacy to G.D. if he disrobed but that a wooden privacy fence would allow him to receive the same enjoyment from the property as a non-disabled person would. As a result, the Sixth Circuit concluded that a jury should decide whether the requested fence was a necessary accommodation and reversed the lower court’s decision.
Best Tips for Homeowners Associations to Avoid Fair Housing Claims
The Sixth Circuit’s decision in Debity v Vintage Vill Homeowners Ass’n, No. 23-5897, 2024 WL 3936828, at *1 (6th Cir., August 26, 2024) underscores the importance for community associations to carefully evaluate disability-related requests for reasonable accommodations under the Fair Housing Act. While the homeowners association offered a partial accommodation, it failed to account for all the disability-related reasons for the request to install a wooden fence.
- Consult with an HOA Attorney. When a resident requests a reasonable accommodation under the Fair Housing Act that may conflict with restrictive covenants, getting advice from an attorney with experience in Fair Housing matters is important.
- Adopt and follow a Fair Housing Policy. It is best practice for the HOA rules to contain a Fair Housing Policy to ensure consistent and lawful handling of disability-related accommodation requests. Contact a community association attorney to draft a Fair Housing Policy before problems arise.
- Avoid rigid denials of requests for Reasonable Accommodations. Inflexibility in considering requests for reasonable accommodations under the Fair Housing Act can lead to costly litigation, and insurance coverage for discrimination claims may be limited or unavailable.
Community associations seeking guidance on enforcing restrictive covenants or navigating Fair Housing issues must consult with an experienced community association attorney. If your HOA needs assistance, our firm is here to help!
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 law, and real estate law. Mr. Hirzel is a fellow in the Community Associations Institute’s College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys nationwide. Mr. Hirzel has been recognized as a Michigan Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations in Michigan and Illinois. He may be reached at (248) 450-0339 or kevin@hirzellaw.com.
