This case involved a dispute between a homeowners association (Association) and a homeowner (Owner) over Disabled Homeowners rights to have an accommodation from Associations deed restriction. The restriction prohibits owners from erecting fences on their property unless they submit detailed specifications to the Association, along with a $25.00 review fee, and Association approves the project in writing

Before the Owner purchasing her home, she was aware of the deed restriction. After she purchased her home, she constructed a fence around her backyard without having first submitting the required application requesting approval of the fence. Owners justification for building the fence was that it was necessary because she suffers from several medical illnesses for which she has been prescribed, and owned, an emotional support dog.

Prior to filing a law suit against Owner, Association requested that she remove the fence and informed her of reasonable alternatives that would not violate the deed restrictions and which would allow her dogs to use her backyard without requiring her presence. Association also offered to approve the fence retroactively if Owner obtained consent from all of her neighbors, but she was not able to obtain such consents. Thereafter, when Owner continued in her refusal to remove the fence, Association filed suit against Owner seeking an injunction to prevent Owner from maintaining the fence on her property.

In response to Associations action, Owner filed a motion for summary judgment in which she contended that Association had violated the Fair Housing Act and equivalent state laws, as well as other laws which protect persons with disabilities. Owner claimed that she was a protected person under those laws and that she needed a fence to keep her dogs, which she contended was a reasonable accommodation that should be granted to her.

The trial court denied the motion for summary judgment after finding that Owner was aware of the restriction before she purchased her property, and she had reasonable alternatives to the fence in question. Because Owner was in violation of the deed restrictions in question, the trial court granted summary judgment in favor of Association.

After the trial court denied Owners motion for reconsideration, Owner filed an appeal in which she contended that, by attempting to enforce the deed restriction in question, Association was discriminating against her under the Fair Housing Act, which prohibits discrimination against a buyer of a house because of that persons handicap or disability.

On review, the appellate court stated that parties asserting claims under the provisions of the Fair Housing Act being cited by Owner had the burden of proving that the modification or accommodation they were seeking is both reasonable and necessary for them to have the equal opportunity to enjoy the housing of their choice. The court stated that a modification or an accommodation is reasonable when it imposes no fundamental alteration in the nature of the program or undue financial and administrative burdens.

The court also stated that, when addressing whether an accommodation is reasonable, the court may consider the benefits of the proposed accommodation against the extent to which the legitimate purposes and effects of the regulation would be undermined by the accommodation. Thus, the court could consider whether there are alternatives that would accomplish the benefits more efficiently.

The appellate court further stated that a disabled person is not entitled to the accommodation of his or her choice, but is entitled only to a reasonable accommodation, and A failure to provide a reasonable accommodation only becomes unlawful discrimination when it impairs a persons use and enjoyment of a dwelling. The necessity element requires that the requested accommodation be essential and not just preferable and gauging necessity requires consideration of whether or not another alternative satisfies the goal of equal housing for the disabled person.

The appellate court found that Owner had reasonable alternatives to the fence that she desired and she did not show that ex post facto approval of her fence was necessary to satisfy the goal of equal housing opportunity. Because Association demonstrated that reasonable alternatives existed which would better balance Owners needs to let a dog outside unsupervised, and still enable Association to control and preserve the aesthetic uniformity and character of the community, the appellate court affirmed the trial courts judgment in favor of Association.

UNPUBLISHED Michigan Appellate Court decision (May 30, 2019).

See case decision: Fox_Bay_Civic_Ass’n_v._Creswell_