In Auburn Woods v. FEHC the Court of Appeal held that a condo owners' association could not enforce its CC&R prohibition of dogs against owners who suffered from depression and other related disabilities. This case from Placer County involved requests by husband and wife condo owners, who each suffered from diagnosed depression, to keep their eleven-pound terrier "Pooky" despite a CC&R ban on dogs. The association denied the request and threatened to impose fines. The owners took Pooky to a friend's house and their depression worsened.

Canine Companion. The owners then asked the association for a waiver of the restriction as a "reasonable accommodation" for their disabilities, and provided a letter from their treating psychiatrist as to the medical benefits of their canine companion. The association denied the request and suggested the owners get a cat. The owners sold their condo and moved to Oklahoma, but before doing so filed a complaint with the Department of Fair Employment and Housing (DFEH).

Emotional Distress. The DFEH charged the association with disability discrimination, and after a lengthy hearing ruled that a companion dog would have been a reasonable accommodation, and that the association's denial was unlawful discrimination. The association was ordered to pay $12,500 in emotional distress damages.

Appellate Court. The association challenged the DFEH decision in superior court and prevailed, arguing that there was insufficient evidence at the DFEH hearing to establish that a companion dog was a necessary reasonable accommodation. The owners and DFEH appealed. The Court of Appeals reversed, holding that the evidence had established a causal link between the no-dogs policy and the interference with the owners' use and enjoyment of their condo. The court noted, "It is clear that, under the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation . . . even if an animal does not qualify as a service animal."

RECOMMENDATION: While courts will generally defer to associations in CC&R enforcement, pet restrictions are vulnerable to challenges based on legally protected classifications. If there is any question as to the enforcement or validity of a restriction, boards should seek legal counsel.