According to the Ninth Circuit Court of Appeals, a violation of the Fair Housing Act does not occur until a requested accommodation is first refused. In a recent case from Hawaii, a homeowner was granted temporary permission to keep a companion pet while the Board of Directors investigated the request. According to the court the homeowner failed to establish all of the required elements of a Fair Housing Act claim and the homeowner's law suit was dismissed.
The homeowner, who suffered from depression, purchased an English bulldog to act as a companion pet. In accordance with the Association's Rules and Regulations, the homeowner submitted an application for an exception to the Association's no pet rule. In support of the request, the homeowner provided notes from several doctors stating that the homeowner would benefit from the companionship the dog offered.
In order to adequately review the application, the Board of Directors granted a temporary variance permitting the Homeowner to keep the dog. The homeowner, rather than waiting for the result of the investigation, filed a Fair Housing Act claim of discrimination, claiming that by failing to grant permanent permission for the homeowner to keep the dog, the Association acted in a discriminatory manner in violation of the Fair Housing Act.
The Court in its ruling identified the five elements that must be present in order to prove a violation of the Fair Housing Act based upon an owner's handicap. The elements are: (1) the owner is handicapped, (2) the Association knew of the handicap, (3) an accommodation may be necessary for the individual to have an equal opportunity to enjoy the dwelling, (4) the accommodation is reasonable, and (5) the Association refused the accommodation. In the Hawaii case, the Homeowner's claim of discrimination failed because the Association never actually attempted to remove the dog, rather it granted a temporary variance for the dog while it investigated the disability claim. In its ruling the Court stated that, "a violation of the FHA occurs when the disabled resident is first denied a reasonable accommodation." In this case the homeowner was never denied permission to keep the dog and the Association never requested the dog be removed.
While the case noted above occurred in Hawaii and was the result of a long standing feud between the Association and the homeowner, Courts continue to take a very fact specific approach to discrimination claims. To protect the Association and its Board of Directors, if the Board feels that investigation of a Fair Housing Act request is necessary, for whatever reason, temporary approval for the variance should be granted so as to insure compliance with the Fair Housing Act while the application is reviewed.