Housing cooperatives, like other types of community and association housing, face many issues with federal housing laws such as the Fair Housing Act (“FHA”) and Americans with Disabilities Act (“ADA”). While the differences between housing cooperatives, and condominiums for example, are wide and vast, they are sometimes subject to certain laws. Here, cooperatives and condominiums both must navigate and comply with federal (and state) laws pertaining to Fair Housing. This article, while providing an in-depth analysis of a federal lawsuit involving a condominium owner and the association, involves claims of discrimination under the Fair Housing Act as a result of the failure to ban smoking within the units. This specific instance, is something the housing cooperatives, as well as condominiums face in an ever-evolving and nuanced area of federal housing law.
On December 19, 2019, the United States Court of Appeals for the Sixth Circuit issued an Opinion affirming a Michigan federal District Court’s dismissal of a condominium unit owner’s lawsuit alleging discrimination under the Fair Housing Act against a condominium association for its failure to ban smoking as a reasonable accommodation request. This case carries significance for condominium and other association-based communities in how courts continue to address claims under the Fair Housing Act relating to smoking inside a building or unit and the odors that result. This article goes over the history of the case, the Sixth Circuit Court’s opinion and analysis, as well as some key things that the association did that were noteworthy in the opinion.
Although the David v. Echo Valley
defendant was a condominium association, which are inherently different from the unique property and occupancy interests within a housing cooperative, the fact that housing cooperatives are also subject to the Fair Housing Act makes this case relevant to cooperatives. While many understand the differences between condominium associations and cooperative housing corporations, they have some shared characteristics and are treated similar when it comes to some areas of the law, such as Fair Housing. The intent of this article is not to suggest that condominiums and housing cooperatives govern themselves in identical fashions. However, when condominiums and cooperative do have shared concerns and interests, one can learn from the other.b. Facts of the Case.
The plaintiff in Davis v. Echo Valley Condominium Ass’n, et al.
, raised several claims against the condominium association and its management agent, including discrimination under the Fair Housing Act, nuisance, breach of covenants (premised under the association’s master deed and bylaws) and other state-law claims. The plaintiff complained “that the smell of [cigarette and marijuana] smoke regularly emanating from a neighbor’s condo aggravated her asthma.” The plaintiff was a cancer survivor who suffered from asthma, and also at some time was a member of the association’s board of directors. The co-owner initiated complaints to the association’s board of directors and management agent that smoke and odors from an adjoining unit were causing aggravations to her medical conditions, causing discomfort and other adverse effects to her ability to “breathe comfortably” and otherwise live peacefully in her unit. Like many similar situations people face in association and community living, the plaintiff first complained to the neighbor prior to filing any claims in a court of law, but to no avail.
The plaintiff then complained directly to the condominium association. The association and its management agent’s first response was that they sent the neighbor-resident a written
Davis v. Echo Valley Condo. Ass'n, 945 F.3d 483 (6th Cir. 2019).
Id. at 486.
Id. at 487.
letter requesting that they keep the smell of smoke contained. It is worth noting that the association did not have a written policy, Bylaw provision, rule or regulation that prohibited smoking inside one’s condo unit. Instead, the association and its residents long understood that smoking was permitted inside condominium units. After the association received another complaint from the plaintiff, the association hired a heating and cooling contractor and paid for the installation of a fresh-air system which drew in air from the outside, rather than from the basement, in the plaintiff’s unit. The association did this at no cost to the plaintiff.
While the installation of the fresh-air system in plaintiff’s unit appeared to help and alleviate some of the odors, plaintiff claimed that the smell and effects of the neighbor smoking in their unit persisted. In the plaintiff’s next move (prior to filing a complaint in a court of law) she submitted a Reasonable Accommodation Request to the association, asking them to prohibit smoking within her building. In response, the Association attempted amend its bylaws to prohibit smoking, but the proposal failed. Even though the neighbors who were the main source of plaintiff’s complaints had moved, the plaintiff still filed a lawsuit against the association and its management agent.c. Plaintiff/Co-owner’s Lawsuit and Appeal.
The crux of plaintiff’s lawsuit against the association was that the association had discriminated against her under the Fair Housing Act (and Michigan law) by refusing grant a reasonable accommodation request to ban smoking, which was claimed to be a detriment to the effects of plaintiff’s disability (i.e., cancer survivor, asthma and chemical sensitivities) and the ability to peacefully enjoy her use of the unit. The plaintiff also brough other claims relevant to condominium associations, notably asserting breach of several covenants within the association’s bylaws, and a private nuisance claim, which are also discussed below. First, we start with plaintiff’s claim of discrimination under the Fair Housing Act.
In the trial court, both the plaintiff and defendants filed motions for summary judgment. The trial court granted the defendants’ motion for summary judgment, and in doing so, determined that plaintiff’s request (to ban smoking within the condominium or her building) was not a reasonable accommodation as it would fundamentally alter the association’s already existing policy which allowed smoking. The plaintiff then filed an appeal to the Sixth Circuit Court of Appeals. As discussed below, the Sixth Circuit Court of Appeals affirmed the trial court’s decision granting defendants’ motions for summary judgment and dismissing the lawsuit.
i. The Association did not unlawfully discriminate against the plaintiff under the Fair Housing Act by failing to ban smoking.
On appeal, the Sixth Circuit affirmed the trial court’s granting of summary judgment in favor of the association and its management agent. The Sixth Circuit held that the plaintiff’s “proposed smoking ban amounts to a “fundamental alteration” of the [a]ssociation’s smoking policy.” The appeals court reasoned that the smoking-ban was not an accommodation or mere adjustment, but rather, an entire “rewrite” of the association’s policy. More notable, because the
Id. at 492 (citing Howard v. City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002))
association lacked any specific policy banning smoking and because there was long-established understanding within the association that smoking was permitted, the Sixth Circuit further claimed that plaintiff’s proposed ban “would intrude on the rights” or other co-owners. The Sixth Circuit’s ruling relied on prior federal cases reviewing similar FHA claims and reasonable accommodations regarding smoking bans.
Under the Fair Housing Act (hereafter, the “FHA”) (and its amendments) it is unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling because of a handicap of’ that person.” “Discrimination” also includes “a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” In order to state a prima facia case for discrimination under the FHA for refusing to grant a reasonable accommodation request, a plaintiff must first prove a number elements.
While the FHA prohibits discrimination based on one’s race, color, religion, sex, national origin, familial status or disability, this case and article focuses on the “disability” class of claimants. From this, it follows that a plaintiff must first prove that he or she suffers from a handicap or disability. Next, the plaintiff must allege and show that the accommodations sought were “necessary.” Third, the plaintiff must prove that the request was a “reasonable accommodation.” The Sixth Circuit looked to each of these factors in its analysis of the plaintiff’s claims in Davis v. Echo Valley, et al.
While little was offered by the plaintiff to prove the first element (i.e., showing of a disability or handicap), the Court’s ruling focused more on the second and third requirements (the “necessary” and “reasonableness” factors), rather than whether the plaintiff suffered from a disability or handicap.
Requests for reasonable accommodations must be “necessary.” The Sixth Circuit agreed with the trial court’s characterization that the plaintiff’s proposed smoking ban was not “necessary” to afford her the ability to use and enjoy her dwelling unit. In making that determination, the Sixth Circuit Court looked at the plaintiff’s ability to “use her condo for “several years” despite the [association’s pre-existing smoking policy]” in determining that plaintiff’s request was better couched as a request for “better opportunities” rather than a strict necessity in order to reside, live and enjoy her condo unit. These facts proved it difficult for plaintiff to show that the smoking ban was necessary to afford her the ability to use and enjoy the dwelling unit.
The focused then shifted on whether the plaintiff’s accommodation request was “reasonable.” The adjustment plaintiff’s request had on the association’s policies, however, were deemed by the court to go too far. As stated by the Sixth Circuit “an adjustment goes too far if the costs of implementing it exceed any expected benefits it will provide the person requesting
Pub. L. No. 100-430, § 6, 102 Stat. 1619, 1620–22; 42 U.S.C. § 3604
42 U.S.C. § 3604(f)(2)
42 U.S.C. § 3604f)(3)(B).
Davis v. Echo Valley Condo. Ass'n, 945 F.3d at 490.
it.” In order to be “reasonable,” any requested change in the associations rules or policies, is not determined upon whether the request is a moderate or fundamental change to the policy(ies), but rather, “whether the request is a modest adjustment or fundamental change of the “rule, policy, practice, or service” that the plaintiff challenges.” The court further explained that a reasonable accommodation request seeks a “fundamental change if it turns the challenged policy into something else entirely.”
Looking at the plaintiff’s request to ban smoking, the court concluded first, that the smoking ban would improperly interfere with the rights of third parties (i.e., other co-owners within the condominium association) and their right to smoke in their units. As noted by the Court, it is not unlawful to smoke inside one’s home or condominium unit (absent a policy). Additionally, the court reasoned that forcing the association’s policies from a “smoking-permitted policy” to a “smoking-prohibited policy” would constitute an entire rewriting of the policy rather than an adjustment. The plaintiff therefore failed to establish that the accommodation request was both (i) reasonable, and (ii) did not result in a fundamental change to the association’s policies.
ii. Breach of Covenants (Condominium Bylaws) and Nuisance Claims.
Unlike condominiums, which are typically governed by statutory schemes, such as Michigan’s Condominium Act for example, (see MCL § 559.101 et seq.), which laws may require certain covenants, terms and conditions be enumerated within the association’s master deed and bylaws, cooperative governing documents (i.e., Articles of Incorporation, Bylaws, Occupancy Agreements, Rules, Regulations & Policies), may contain similar covenants, provisions or policies, as those in the fact of the Davis v. Echo Valley case.
Next, the Sixth Circuit addressed plaintiff’s several claims that by allowing smoking inside condominium units, the association was failing to enforce several covenants within the Master Deed and Bylaws. The Court also addressed plaintiff’s state law nuisance claims. Both, however, can be addressed in the context of the association’s covenants. Specifically, the plaintiff claimed that the association failed to enforce the requirement that co-owners must keep their units “in a safe, clean and sanitary condition,” i.e., the covenant prohibiting co-owners from creating a nuisance or annoyance to other co-owners, and doing acts that would increase the rate of insurance on the condominium. Here, all of plaintiff’s claims fell short.
First, looking to Michigan law that restrictive covenants (such as those alleged by the plaintiff in Davis v. Echo Valley, et al.) must be strictly construed against persons or parties claiming to enforce them. Moreover, any ambiguities are resolved in the favor of one’s free use of his/her property. Next, looking to the association’s history, the Sixth Circuit noted that from
Id. (citing Smith v Lee Assocs., 102 F.3d at 795.
Id., at 492.
Id., at 493 (citing Moore v. Kimball, 291 Mich. 455, 289 N.W. 213, 215 (1939); Millpointe of Hartland Condo. Ass’n v. Cipolla, No. 289668, 2010 WL 1873085, at *1 (Mich. Ct. App. May 11, 2010) (per curiam)
a historic perspective, the association had never prohibited or restricted smoking. Nor did the language of the association’s bylaws or rules and regulations show any support that smoking was prohibited. Rather, the bylaws and policies showed that the association had in fact, banned other activities ranging from restrictions on certain pets or animals, to display signs or possession and use of BB guns. The Sixth Circuit Court concluded that if the association intended or wanted to ban smoking, such ban or prohibition would be reflected in the bylaws or policies that ban other activities or things. In short, a smoking ban was not consistent with the association’s bylaws or policies, nor their history.
In determining that the association had not failed to enforce the covenant of providing a safe, clean and sanitary conditions, the court again referred to the association’s bylaws and policies. Because the policies allowed smoking, and historically so, the court determined that some amount of smoke would constitute “ordinary” in the context of sanitary and clean conditions, and that such levels could not “be considered a “danger” or “pollution”.
In looking at plaintiff’s nuisance claim under both theories that the association’s breached its covenants and plaintiff’s claim under common law, the Sixth Circuit looked to state law. In Michigan, a private nuisance is an “unreasonable interference with the use or enjoyment of property” that results in significant harm.”” According to Michigan case law, many courts agree that a nuisance claim provides no way for relief in the context of smoking. As noted by the Sixth Circuit Court “[the plaintiff] chose to live in a condo complex whose bylaws do not restrict smoking. As other courts have found, while even a small amount of smoke might be a nuisance in a complex that bans smoking, the same cannot be said for a complex that allows it.” To this regard, the Court noted that despite the plaintiff’s alleged “sensitivities,” which may be more so than an average person, a “nuisance is not subjective.”
The plaintiff’s other breach of covenant claims against the association failed. Plaintiff additionally alleged that the smoking inside the unit caused an increase to the rate of insurance because it constituted a fire hazard. The Court dismissed this claim, again because of the association permitted smoking. Lastly, the plaintiff’s claim that smoking inside constituted unlawful and offensive activity was dismissed on procedural grounds, notably dealing with plaintiff’s failure to raise this issue with the trial court.d. Learning from Davis v. Echo Valley Condominium Association.
There were some important things that the association and its management agent did in this case played a role in obtaining a dismissal of the lawsuit. The Sixth Circuit Court noted these actions taken by the association and its management agent. First, the association and its management agent did not ignore plaintiff’s complaints and requests. Rather, they attempted a compromise and alternative resolution. These efforts were all noted by the Sixth Circuit Court
Id., at 493Davis v. Echo Valley, et al.
, supra at 494 (citing Adams v. Cleveland-Cliffs Iron Co.
, 602 N.W.2d 215, 222 (Mich. Ct. App. 1999).
Id. (citing Schuman v. Greenbelt Homes, Inc.
, 69 A.3d 512, 520 (Mich. Ct. Spec. App. 2013; and Nuncia v. Rock Knoll Townhome Vill., Inc.
, 389 P.3d 370, 374-75 (Okla. Civ. App. 2016).
Id. at 495 (citing, Schuman
, supra at 525).
and helped to “undermine” plaintiff’s claim that the association and its management agent failed to enforce the bylaws.
Specifically, the association first wrote a letter to the occupant in the condo unit that plaintiff claimed the smoke and odors emanated from. The association asked plaintiff’s neighbor to keep the smell of smoke from intruding into the plaintiff’s unit and contained. Although this effort did not cure plaintiff’s claims, the association did not stop there. After plaintiff continued to complaint, the Board of Directors had a clean air unit / air purifier installed in the plaintiff’s unit, all at the association’s expense. When plaintiff continued to complaint, the association even went as far as to circulate a proposed amendment to the bylaws providing for a smoking ban. However, the proposed amendment for a smoking ban failed to pass by a majority vote. All of these efforts showed that the association made concerted efforts to resolve plaintiff’s complaints. While no single effort was determinative of the outcome of the case, the Court did make sure to note the association’s efforts, which did factor into the court’s ultimate decision.e. Conclusion.
What is important to take away from this case is that the association’s actions and attempts to resolve plaintiff’s complaints without first resorting to extremes; the association taking neither a “do-nothing” approach, nor instantly pushing a smoking ban policy change without first exploring alternative methods of resolution, played an important role in the outcome of the case. Housing cooperative corporations may take a similar approach to addressing member complaints when a cooperative does not have an express smoking ban within its governing documents.
Even though complaints about smoking may be common, they cannot, and should not be met with one standard common approach or singular answer. With these types of cases, an Cooperative would be best served by taking a hard look at the member’s complaints to first understand the facts, the nature and severity of the complaints, the alleged affects claimed by the member owner, and the proposed requests the member seeks. Understanding the nature and allegations of a resident’s complaints about smoking, will allow the cooperative to determine and craft an appropriate and well-thought response. A well-rounded response providing for multiple steps or efforts, such as the association’s response in Davis v. Echo Valley, et al.
, proved to be worthwhile in helping obtain a dismissal of plaintiff’s lawsuit. A response such as that from the association in the Davis v. Echo Valley, et al.
case is likely crafted by a well-informed Board of Directors, with the assistance of its management agent and the cooperative’s legal counsel, all of whom should understand not only the policies and rules in place, but also, the make-up and preferences of the membership and cooperative community.
By: Matthew T. Nicols, Esq.
Attorney at the Law Offices of Pentiuk, Couvreur & Kobiljak, P.C.Davis v.Echo Valley, et al.
, at 495