Court: Resident's Fence Not Reasonable Accommodation During COVID

In June 2020, a court denied a Texas resident’s request for an emergency order to allow him to fence off his yard because his disability—a compromised immune system—left him vulnerable to COVID-19 exposure to passing strangers.

The resident owned a single-family home in a community governed by a homeowners association (HOA). Under the community’s rules, any construction to community properties, such as installation of a fence, must be preapproved by the HOA.

The resident’s property line backed up to the shore of a lake. His backyard was split in half by a jogging path. With the HOA’s approval, the resident fenced off the front half of his backyard, next to his house. At that time, the jogging path and unfenced area of his yard by the lake were used only by other community residents. In recent years, however, he said that the general public began using the path and the unfenced portion of his yard to sit, nap, picnic, fish, feed birds, exercise, and relieve their dogs.

In 2019, the resident asked the HOA for permission to install a new three-sided fence around the back portion of his yard between the path and the lake. The HOA denied the request, and the resident sued the HOA; the case was still pending in state court.

In the meantime, the resident was diagnosed with cancer and began chemotherapy treatments, causing his immune system to become compromised. According to the resident, his doctor told him that direct sunlight was therapeutic to his physical and psychological recovery from cancer, but only the unfenced portion of his yard next to the lake got direct sunlight.

In April 2020, the resident asked the HOA for a reasonable accommodation to allow him to install the second fence due to his disability of having an impaired immune system. In light of the COVID-19 pandemic, the resident said his doctor now believed that it was too risky for him, due to his compromised immune system and his susceptibility to the virus, to be around people who were not part of his household. For this reason, the resident said that he and the doctor agreed that it wasn’t safe for him to use the unfenced portion of his yard. The HOA denied his request.

The resident sued, claiming that the HOA violated fair housing law by denying his reasonable accommodation request. He asked for an emergency court order allowing him to install the fence.

The court denied his request. Because the resident failed to show that he had a disability, the court said that he was unlikely to win at trial on his disability discrimination claim, so he wasn’t entitled to the emergency order to allow him to install the second fence.

Under fair housing law, an individual has a disability if he has a physical or mental impairment that substantially limits one or more major life activity. The resident claimed that he suffered from a physical impairment due to his compromised immune system, which limited his major life activity of being “in close proximity to persons unknown to him.” But the resident couldn’t point to any cases—and the court found none—supporting his claim that staying away from strangers was a major life activity. Instead, the court said that this activity was outside the range of major life activities—those central to daily life such as walking, seeing, and breathing [Eastwood v. Willow Bend Lake Homeowners Association, 2020 U.S. Dist. LEXIS 108389, June 2020].

You can find similar cases in our September 2020 lesson, “Dos & Don'ts for Handling Reasonable Accommodation Requests,” available to subscribers here.