Feds Clip Co-Op’s Wings Over Illegal Handling of Noisy Birds

Melissa Doolan, Esq. shares her insights in this featured article, republished from HOAleader.com.

A New York City co-op has settled with the feds for the largest ever financial penalty on a building that denied its residents’ rights to service animals. Our experts say there are lessons other community associations can learn from this situation.

Here’s What We Know

Meril Lesser had birds in her apartment in The Rutherford, a Gramercy Park co-op, for 20 years. She moved in with two and added a third in 2015.

Reports say the birds’ shrieking and squawking disturbed other residents. When the board began enforcement to remove the birds, it says that’s when Lesser first claimed they were emotional support animals (the prosecutors claim otherwise).

Predictably, this whole situation spilled into litigation. At one point, Lesser generated a buyer for her unit. Co-op agreements generally allow boards to approve new buyers. In this case, the co-op rejected Lesser’s buyer. She then alleged retaliation.

In August, the U.S. Department of Justice announced a settlement between the co-op board and Lesser, finding that there was “reasonable cause” to believe the board had discriminated and retaliated against Lesser. The board never conducted a noise testing or soundproofing analysis, apparently didn’t take steps necessary to investigate Lesser’s emotional service animal claim, and didn’t have a reasonable accommodation policy.

The co-op agreed to pay Lesser $165,000 in damages and to buy her apartment for $585,000. The co-op must also adopt a reasonable accommodation policy applicable when residents request an emotional support or service animal. And it’s required to submit quarterly reports so the federal government can monitor its ongoing compliance.

Co-Ops are Different

There’s no question that if your community is a condo or HOA, your contract with your owners—your declaration, CC&Rs, or whatever it may be called in your state—may not be the same as in this co-op case.

“In California, co-ops are the rarest form of common interest ownership,” reports Adrian Chiang, an associate at Swedelson Gottlieb in Los Angeles who represents about 100 condos and HOAs throughout California at any given time. “So first of all, I’d like to know what the co-op agreement between the owners and the co-op in this New York situation states.

“It sounds like the agreement allows the co-op to get rid of an owner for a nuisance,” he adds. “I’m a bit surprised. In California, I haven’t seen an agreement like that, where a co-op owner could essentially be removed for a nuisance. In California, maybe you could remove someone from a 55-plus community if the owner doesn’t meet that requirement. Or maybe if they haven’t paid assessments, sure.

“But when you’re dealing with a nuisance?” asks Chiang. “Eviction for a nuisance is a really extreme legal tactic to take.”

Where This Co-Op Board Went Wrong

There’s also no question the board in this situation made mistakes—or it wouldn’t have been slapped with such severe financial penalties. So what should it have done?

Most importantly, it should have done a better job—at least based on what’s been reported—of engaging with Lesser to find solutions to this challenge.

“You can almost see it from the board’s perspective,” says Matthew W. Heron, a member at Hirzel Law in Farmington, Mich., which represents hundreds of community associations throughout Michigan. “They had this situation with noisy birds, and they’re probably thinking: How can these possibly be emotional support animals? In their minds, they’re just birds.

“But that isn’t any sort of analysis at all,” he explains. “It’s an off-the-cuff thought. It does look like the board could have done a better job of engaging in an interactive process to talk to the owner rather than taking a hard-and-fast line.”

Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years, has seen boards make quick conclusions, too. “I think sometimes when you have this longstanding issue and all of the sudden someone claims an emotional support animal, boards sometimes ignore that portion of the process,” she explains. “They think, ‘The person just made that up because they want to keep whatever the pet is.’ That’s instead of realizing that every time someone says the words emotional support animal, the board needs to do an individual analysis.”

And if the board really thought this owner wasn’t claiming an emotional support animal in good faith, it was the board’s job to make that case. “As with any accommodation, if the board was going to try to argue that this was an unreasonable request, they should have better supported that argument or at least investigated the impact on the community,” Heron says. “At least based on the limited information in the news, the board didn’t really go to that objective step or support their position that allowing these birds as an accommodation would have been unreasonable.”

Doolan agrees. “There were other steps the association could have taken,” she explains. “First of all, they should have taken the request seriously, which they would have been more likely to do if they had an emotional support animal policy or had involved legal counsel early on. They also didn’t do any type of noise testing. They didn’t analyze whether soundproofing could have helped. They didn’t ask what other steps they could have taken to mitigate the sounds.”

And while this probably wouldn’t have worked in this situation, a board may sometimes be within its rights to ask why the animal at issue is the one the resident needs for support. Extreme example to make the point: a condo owner claims a swan is an emotional support animal.

“I’m sure this co-op tried fines,” says Chiang. “But I didn’t see or hear discussion of whether the board tried the removal of the birds or whether it would have been reasonable to ask that the existing birds be replaced with others that weren’t a nuisance.

“In some cases, when you know you have an emotional support animal claim, it can be reasonable to ask: Does the emotional support animal actually have to be this specific animal?” he states. “So instead of filing for eviction, maybe this board could have requested that the birds be switched out for others.

“I think there were solutions to this problem without being so aggressive as to seek the removal of the owner,” says Chiang. “That’s so extreme. I think there was a middle ground, some kind of back-and-forth engagement process that could have prevented this outcome.”

Quick Conclusions are Dangerous

It’s so common: you hear the words emotional support animal whenever you seek to address an animal creating challenges in your community. But these cases need careful attention.

“Each instance with an emotional support animal is its own request and requires its own analysis,” states Heron. “I do think boards may have a view of such requests given the fact that some people may have used the process in making emotional support animal requests that weren’t warranted.

“But that doesn’t mean you don’t have to do the analysis,” he says. “It can be a hassle, and it can take a lot of time. But you have to evaluate every request. You can’t look at it quickly and come to a fast conclusion. If you don’t fully evaluate the thing in front of you, that can lead to big problems.”

Doolan says a process for handling each case is a good start. “It’s about having a good reasonable accommodation policy,” she states. “And when you hear certain words like accommodation, disability, or emotional support animal, you might have skepticism, but you need to take these cases seriously.”