Association Can Refuse Fence for Service Dogs

Owner requests for accommodations of their service or emotional support animals can lead to ugly, costly disputes, but associations shouldn’t assume they can’t win the legal battle. A state court of appeals in Michigan recently came down on the side of the association after an owner erected a fence for her dogs without first seeking approval. The case provides a good example of how to handle similar situations.

Disabled Owner Builds Unauthorized Fence

Janis Creswell owns a unit in a subdivision governed by the Fox Bay Civic Association. The deed restrictions for the community prohibit owners from constructing fences unless they submit detailed specifications to the association, along with a $25 review fee, and the association approves the project in writing.

According to the deed, the restriction is intended to ensure an aesthetically pleasing and “harmonious” subdivision. The association had previously approved only fences surrounding swimming pools, which are required by state law.

Creswell suffers from several illnesses and was prescribed an emotional support dog; she also owns a registered service dog. After buying her home, she built a fence around her backyard to keep the dogs in, without submitting an application.

The association notified her that she had violated the deed restrictions. It requested removal of the fence and informed her of reasonable alternatives that wouldn’t violate the restrictions, including a dog run or invisible fence. Either would allow her dogs to use the yard without her present, but she refused both.

In an attempt to avoid litigation, the association offered retroactive approval for the fence if she obtained consent from all her neighbors. She couldn’t secure the necessary consent.

In an unusual twist in these types of cases, it was the association — not the owner — that turned to litigation. It filed a lawsuit alleging Creswell was in violation of the deed restrictions and asked the court to issue an order that she take down the fence. She argued that the association violated the federal Fair Housing Act and its state law counterparts because her request to keep the fence was a reasonable accommodation.

The trial court ruled in favor of the association, finding no discrimination occurred because reasonable alternatives to the fence were available. Creswell appealed.

The Court Knocks It Down

Like the trial court, the court of appeals focused on how Creswell simply ignored the restriction, says Dan Artaev, senior attorney at Fausone Bohn, LLP, in Northville, Mich., who represented the association.

“If anyone else goes out and tries to build something in the community, they have to pay the fee and submit plans to the association,” he says. “This woman did none of that. She just took the position that ‘I have a service animal, I can do whatever I want.’”

The court of appeals highlighted the fact that the association suggested reasonable alternatives that would provide for Creswell’s disability while complying with the restrictions. These, it said, would better balance the need to let a dog outside unsupervised with the need to control the character of the community.

Notably, the court stated that, when considering requests for emotional support and service animals, associations don’t have to grant every request but should examine the reasonableness of each request based on the unique facts.

Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations, says this observation in particular makes the case important. “Associations get a little nervous because so many cases and administrative hearings go the other way on animals.

“A lot of owners who make a request think they’re entitled to an absolute accommodation, but this says associations can exercise judgment. If the board can come up with some kind of alternative that accommodates a disability and doesn’t violate the deed restrictions, the courts probably are going to find that okay and not go for some more intrusive accommodation that would violate the restrictions.”

Artaev emphasizes the association’s soft touch when initially dealing with Creswell. “We never contested the fact that she was disabled or needed an animal because we were trying to be sensitive to her disability,” he says. “We just took her word that she needed these pit bulls.”

While the association was reasonable, it also drew a hard line to protect the interests of its other owners by going to court. “If an association is too accommodating and doesn’t enforce deed restrictions, it’s open to ‘waiver,’” Artaev cautions. “The next time someone builds something without approval, the owner could just point to this fence and say the association waived the right to enforce the deed restrictions.”

The Downside for the Association

Although the association prevailed, it’s worth noting that its governing documents didn’t include a provision allowing it to collect its attorneys’ fees.

“Nobody wins in this sort of litigation,” Artaev says. “The homeowner doesn’t win because she has to take down her fence and lost the chance to work something out with her association, and the neighbors aren’t happy because the association has to pay the legal fee.”