Owner Must Prove “Necessity” for a Requested Accommodation Due to Disability

This case involved a dispute between homeowners (“Owners”) and their homeowners association (“Association”) over Association’s denial of Owners request for an accommodation from Association’s fencing restrictions.

Association’s governing documents provided that the installation of all fencing by owners had to be approved by Association prior to any installation or construction of same. Prior to completing the purchase of their property, Owners sought approval from the Association for the construction of a 6’ wooden privacy fence due to their sons special needs, which they alleged could cause him to dart, or wander off. Association informed Owners that it would consider the request after Owners purchase of the property was completed. After Owners completed the purchase, they submitted various requests to Association seeking an accommodation that allowed for them to construct a 6’ wooden fence.

Association denied Owners request for a 6’ wooden fence, but approved a 6’ wrought iron fence. Association also offered Owners a deferral of their HOA fees for a period of time to offset the additional cost of a wrought iron fence in comparison to a wooden fence. Before installing any fencing, Owners elected to sell their property and move to a different community.

Before moving, Owners filed a lawsuit against Association alleging: