So what happened and did the cooperative Board miss all the warning signs? This case came out of New York. The member moved into the unit in 1999. She maintained parrots in her home as emotional support animals to assist her with her disability and did so for 16 years. One of her neighbors then began to complain about noise. An investigation showed that that complaint was unfounded. The cooperative, however, didn’t have any written emotional support policy. That was its first mistake. Nevertheless, the member produced a letter from her psychiatrist requesting accommodation. Given the strength of that letter the cooperative’s best option was to either grant the accommodation, see additional support, or establish that the parrots posed a direct threat to the health or safety of others or physically damaged the property.
What was the cooperative’s response? Remember the cooperative failed to have an assistance animal policy. You would think at this point they would adopt a policy and grant the accommodation. Not so. They made their second mistake. The cooperative filed an eviction action against the member in 2016. The member then claimed to suffer emotional harm because of the eviction proceedings and vacated her unit during the eviction process because of the alleged stress.
How could the Board recover and make this right? It could have adopted a policy regarding assistance animals. Did it retain legal counsel? Did legal counsel advise the Board about the Fair Housing Act (FHA)? The Act makes it unlawful to discriminate based on a disability in housing. It requires the cooperative to modify its rules to permit assistance animals under most circumstances where medically indicated. The Board could have granted the accommodation and discontinued its eviction proceeding. What did it do next? It did nothing. It appears to have done nothing. Perhaps it sat on its hands thinking all was well? However, the member thought otherwise. She filed a complaint with the Department of Housing and Urban Development (HUD) in 2018. HUD investigated the matter. During this time the member found a buyer of her shares. She proposed to sell her shares and be done with the cooperative.
The cooperative, however, made its third mistake. It rejected the arrangement and did not allow the purchaser to obtain the complaining member’s shares. There may have been good reasons for this or not, but the end result was that HUD considered this denial as retaliation and retaliation is also a violation of the Fair Housing Act. The cooperative inexplicably made wrong decision after wrong decision. The HUD investigation was completed finding cause and a federal lawsuit was filed in 2021.
After three years of litigation and attorney fees, the consent decree was finally approved by all the parties. The cooperative had to pay the member $165,000 in damages. It also had to offer $585,000 to purchase the member’s shares in the cooperative which was $85,000 more than the average unit in the building. The cooperative had to finally adopt a reasonable accommodation policy regarding assistance animals, train its staff regarding same, allow the United States to monitor compliance with the decree, and dismiss the eviction proceeding that was still pending. Of course, all of the other cooperative members were essentially forced to subsidize this settlement because of the cooperative’s resistance over the past 10 years.
Whether or not competent legal counsel was involved from the beginning is unknown. But they should have been. The cooperative could have retained an attorney immediately upon receiving the request for an assistance animal and legal counsel should have advised the Board that they needed a written assistance animal accommodation policy. Counsel could have evaluated the psychiatrist letters to determine whether it was compliant with the FHA’s requirements for accommodation and researched whether a parrot indeed could be an assistance animal. For whatever reason these avenues were not pursued. The result exposed the cooperative to three-quarters of million dollars.
If a cooperative Board has received a request for an assistance animal, it needs to know that the law in this area is well-developed, and that plaintiff’s attorneys, private housing advocates, and government agencies will enforce the law aggressively against offending cooperatives and their Boards. Knowledgeable legal counsel could have helped.
Attorney Kerry L. Morgan is Of Counsel to Pentiuk, Couvreur & Kobiljak, P.C. He has extensive experience in advising housing clients in connection with employer regulations. Prior to his current legal affiliation, he served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C. He also was appointed as the Director of the U.S. Bicentennial Project for Regent University.
See
https://www.justice.gov/usao-sdny/pr/us-attorneys-office-obtains-settlement-fair-housing-act-case-compensating