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Arnal v. Aspen View Condominium Association, Inc.

United States District Court, D. Colorado

February 29, 2016

ALVARO J. ARNAL, Plaintiff,




THIS MATTER is before the Court on Plaintiff’s Motion for Summary Judgment (ECF No. 9), filed on July 7, 2015, which was originally filed as a Motion to Dismiss, but was converted to a Motion for Summary Judgment by this Court on February 4, 2016. The parties were given until February 15, 2016 to file any additional materials for the Court’s consideration of this Motion. Both parties submitted additional materials, and the matter is fully briefed.

Additionally, Plaintiff filed a Motion to Strike (ECF No. 51) regarding the Affidavit of Jack L. Smith filed in support of Defendant Aspen View Condominium Association’s additional materials for the motion for summary judgment. The Motion is fully briefed.

This matter arises out of a dispute surrounding the presence of a tenant’s assistance dog on the premises of a condominium development that has a no-dog policy. Plaintiff is a joint-owner of one of eighteen condominium units within the Aspen View Condominiums in Aspen, Colorado. Pl.’s Compl., ¶ 25. The property is managed by Defendant First Choice Properties (“FCP”). Id. at ¶ 23. The premises are governed by the bylaws, rules, and policies promulgated by the Aspen View Condominium Association (“AVCA”) Board of Managers (the “Board”). Id. at ¶ 26. Under these rules and regulations, dogs are not permitted on the premises. Id. at ¶ 28. In September of 2013, Plaintiff decided to vacate his unit and rent it to a tenant who required the use of an assistance dog to cope with her periodic seizures (the “tenant”). Id. at ¶¶ 29-32. On October 11, 2013, Plaintiff notified FCP of his intent to rent his unit to the tenant with an assistance dog, and requested information about what AVCA’s policy would be for assistance dogs. Id. at ¶ 33. On November 22, 2013, Plaintiff entered into a written lease agreement with the tenant. Id. at ¶ 42. The tenant then took possession of the unit. Def.’s Counterclaim, ¶ 21. After seeking legal counsel, the Board adopted a new policy with procedures for considering assistance animals on the premises, and sent that policy to Plaintiff on December 24, 2013. Id. at ¶ 22. The parties dispute the details regarding the nature of their communications between October of 2013 and March of 2014, and whether the Board’s requests for information were reasonable under federal guidance from the U.S. Department of Housing and Urban Development. The tenant vacated the unit on or around March 31, 2014. Pl.’s Compl., ¶ 63. In April of 2014, Defendants notified Plaintiff of a resolution to impose fines, fees, and costs against Plaintiff for failure to provide adequate documentation of the tenant’s need for a reasonable accommodation for the assistance animal, and for allowing the assistance animal to reside in the unit without authorization. Def.’s Counterclaim, ¶¶ 47-49. Defendants filed a lien against Plaintiff’s property in June of 2014. Id. at ¶ 50.

Plaintiff initiated this suit in May of 2015, asserting claims of discrimination and retaliation under the Fair Housing Amendments Act of 1988 (“FHA”) at 42 U.S.C. §§ 3601-3619, and interference with contract. Defendants filed counterclaims against Plaintiff, asserting claims for 1) breach of covenants; 2) breach of contract; 3) breach of the implied duty of good faith and fair dealing; and 4) declaratory relief. Plaintiff filed a motion to dismiss Defendant’s counterclaims, which was then converted into this motion for summary judgment. Plaintiff’s argument is that AVCA’s Supplementary Rules Regarding Policy on Assistance Dogs (the “Policy”) violates the Fair Housing Act (“FHA” or the “Act”) codified at 42 U.S.C. §§ 3601-3631, both on its face and as applied in this case. Thus, Plaintiff argues, since Defendant’s counterclaims “all inextricably arise from and rely on an alleged violation of [the Policy, they] should be dismissed with prejudice.” Pl.’s Motion, ECF No. 9, p. 2. Defendant asserts that the Policy does not violate the FHA, and that its counterclaims should not be precluded on the basis of the Policy.


Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the dispute under the applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). I must construe all inferences in favor of the party against whom the motion under consideration is made. Pirkheim v. First Unum Life Ins. Co., 229 F.3d 1008, 1010 (10th Cir. 2000). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).


The FHA was enacted by Congress in 1968 to eliminate discrimination in housing. The Act was amended in 1988 to extend protection to persons with disabilities. Under the Act, housing providers are prohibited from refusing to make “reasonable accommodations in rules, policies, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). Persons with disabilities under the Act are defined as individuals with a physical or mental impairment that substantially limits one or more major life activities; 2) individuals who are regarded as having such an impairment; and 3) individuals with a record of such an impairment. 42 U.S.C. § 3602(h). The parties cite and rely on two reports offering guidance on the interpretation of the Act as it applies to reasonable accommodation requests by disabled persons: 1) the Joint Statement, and 2) the HUD Notice.

The Joint Statement is a report issued by the U.S. Department of Housing and Urban Development (“HUD”) and the U.S. Department of Justice in May of 2004, in an effort to provide technical assistance to the disabled and to housing providers regarding reasonable accommodations under the FHA. The report is entitled Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”), available at The Joint Statement covers what types of discrimination are prohibited by the Act, noting that the Act “prohibits housing providers from discriminating against applicants or residents because of their disability . . . and from treating persons with disabilities less favorably than others because of their disability.” Joint Statement, p. 2. Further, the Joint Statement notes that the Act “prohibits housing providers from refusing to persons with disabilities, or placing conditions on their residency, because those persons may require reasonable accommodations.” Id.

The HUD Notice addresses reasonable accommodation request procedures and guidance specific to assistance animals for disabled persons. It was issued on April 25, 2013, and is entitled, Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs (“HUD Notice”), /documents /huddoc?id=servanimalsntcfheo2013-01.pdf.

A. Whether the Policy Violates the FHA on Its Face

The first issue I must decide is whether the Defendant’s Policy violates the FHA on its face. Plaintiff asserts the following arguments in his ...

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