While there is no express duty for property owners to respond promptly to service animal requests, this duty may be implied under the Fair Housing Act (FHA).[1] Recently, a judge in the District Court of Massachusetts found that this duty may be implied when there is undue delay in deciding to permit or deny a reasonable accommodation, such as a service animal.[2] Some courts have been somewhat hesitant to imply a duty to respond promptly, but more have been willing to in order to ensure equal enjoyment for all residents.[3]

The FHA prohibits discrimination on the basis of race, color, religion, sex, handicap, familial status, or national origin in the context of housing.[4] If a handicapped tenant is denied a reasonable accommodation to have equal enjoyment of the property by a landowner, that denial may be viewed as discrimination.[5] Handicap is construed broadly, encompassing those with “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”[6]

Reasonable accommodations must be evaluated by the condo board or association with the power of making the decision of whether or not to allow the animal. Simply because a handicapped person requests an accommodation, that does not mean the deciding board has a duty to accept their requested accommodation.[7] A “meaningful review” must be conducted and then a decision may be rendered.[8] Service animals have been long recognized as a reasonable accommodation in aiding the growing number of those in the United States with disabilities.[9] While many property managers do not allow animals, they are still required to conduct the same meaningful reviews for reasonable accommodations to determine whether such accommodation is required by the law. This further allows them to inquire into the details of the handicap to make their determination, but not in an intrusive manner; this usually excludes the need for detailed medical records–a letter from a medical provider may be sufficient.[10]

Recently in Giardiello, the condominium owner’s son was diagnosed with post-traumatic stress disorder and required the assistance of a service animal to sense panic attacks and ease anxiety.[11] After rescuing and bonding with a trained police dog while living in Florida, the son needed to move into his father’s condominium in Massachusetts; the condominium board (Board), however, expressly prohibited animals on the premises and lacked any formal procedures regarding accommodations for handicapped residents.[12] After numerous attempts over several months to contact the Board to request a reasonable accommodation, the condominium-owner and his son received no response and the son moved into in the condominium with his service dog.[13] Immediately after moving in, the owner and his son received an email stating that they had one week to remove the dog from the premises.[14] The Board promptly began imposing fines and gave the son a brief ten days to provide medical documentation for why he must have a dog with him for his disability.[15]

In order to state a claim for discrimination due to a lack of a reasonable accommodation, the plaintiff must show (1) she is disabled under the FHA; (2) defendant knew or should have known of the disability; (3) the requested accommodation was reasonable and necessary for equal enjoyment of the property; and (4) the defendant refused the accommodation.[16] The plaintiff in Giardiello clearly satisfied the first three elements, but it is not clear whether the Board truly denied the accommodation. That leaves the threshold question: can an undue delay in responding to the accommodation amount to a denial? The answer is lacking in the FHA and judges must look to other interpretive guidance for assistance.

In 2004, the United States Department of Justice and Department of Housing and Urban Development issued a joint statement regarding guidelines for reasonable accommodations under the FHA.[17] The statement provided that a board “has an obligation to provide prompt responses to reasonable accommodation requests. An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.”[18] Though this is merely administrative and not binding legislation, courts may turn to it for guidance when interpretation of a statute is required. The Board in Giardiello tried to argue the delays were caused by the son’s delay in returning the medical documents; however, the Board ignored the initial requests for an accommodation for months before medical documents were requested.[19]

The final question left is what constitutes “undue” delay? It is clear in Giardiello that taking months to reply was considered undue delay, but where is the line drawn?[20] How long does it take to conduct a “meaningful” review? Courts have not put a bright line rule on how many days, weeks, or months would constitute “undue,” but instead opted for a fact-based inquiry where a reasonable solution for landowners would be to respond to the individual seeking the request as soon as reasonably possible and not create any barriers to communication.

While there continues to be no rule regarding undue delay set forth under the FHA, federal courts throughout the country should continue to follow the interpretations provided by the Department of Justice and Department of Housing and Urban Development and nonbinding precedent of other jurisdictions. Perhaps legislative changes in the future could modify the fourth element to make the standard clearer that undue delay or denial of an accommodation may result in a violation under the FHA. Not all courts will deem constructive denial as actual denial, but they should when disabled citizens are trying to exercise their fundamental human right to housing.


[1] See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 96-97 (D. Mass. 2017) (finding duty to review promptly); see also Overlook Mut. Homes, Inc. v. Spencer, No. 09-4036, 2011 WL 285253, at *4 (6th Cir. 2011) (deeming undue delay failure to respond).

[2] See Giardiello, 261 F. Supp. 3d at 96-97.

[3] See e.g., Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1286 (11th Cir. 2014) (implying duty following guidance from other administrative documents); Spencer, 2011 WL 285253, at *4 (highlighting detriment if not implied); Giardiello, 261 F. Supp. 3d at 96-97 (following Spencer’s reasoning).

[4] See 42 U.S.C. § 3604 (1988) (providing details of statute).

[5] See id. (including denial reasonable accommodations as discriminatory practice).

[6] See 42 U.S.C. § 3602 (1988) (defining handicap).

[7] See Gavin v. Spring Ridge Conservancy, Inc., 934 F.Supp. 685, 687 (D. Md. 1995) (recognizing limitations and protections afforded to board).

[8] See In re Kenna Homes Coop. Corp., 557 S.E.2d 787, 794 (W. Va. 2001) (requiring thoughtful review of request before denial).

[9] See Rebecca J. Huss, Why Context Matters: Defining Service Animals Under Federal Law, 37 Pepp. L. Rev. 1163, 1166-67 (2010) (providing history of service animals and need for them).

[10] See Overlook Mut. Homes, Inc. v. Spencer, No. 09-4036, 2011 WL 285253, at *4-5 (6th Cir. 2011) (gauging amount of information required to make decision).

[11] See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 91 (D. Mass. 2017) (expressing need for service animal to aid with medical condition).

[12] See id. at 91-92 (emphasizing Board rules).

[13] See id. (detailing lack of available options after exhausting all remedies).

[14] See id. at 92 (providing email sent upon discovering dog on premises).

[15] See Giardiello, 261 F. Supp. 3d at 94.

[16] See Astralis Condominium Ass’n v. Secretary, U.S. Dept. of Housing and Urban Development, 620 F.3d 62, 67 (1st Cir. 2010) (reciting elements for stating claim for violation of FHA regarding reasonable accommodations).

[17] See Joint Statement of HUD and DOJ, Reasonable Accommodations Under the Fair Housing Act (May 14, 2004) (providing gap-filler interpretations).

[18] See id. (answering threshold question).

[19] See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 98 (D. Mass. 2017) (stating plausibility of claim).

[20] See id. (failing to discuss what constitutes “undue” delay).

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