A recent case before the Iowa Supreme Court provides a glimpse into the difficulties involved in weighing the rights of two disabled residents when granting an accommodation to either would have a negative impact on the other resident.
Facts of the Case
- A tenant with animal allergies (Cohen) moved into an apartment building due to its no-pet policies.
- A neighboring tenant (Clark) sought a waiver of the no-pets policy due to a disability and requested an assistance animal (a dog).
- The landlord allowed the support animal while requiring the two tenants to use different stairways and provided an air purifier for the tenant with allergies.
- The measures failed to prevent the tenant from suffering allergic attacks.
- The resident sued the landlord and her neighbor in small claims court for breach of lease (the no – pet provision and quiet enjoyment).
- The Landlord responded that fair housing law required the accommodation, and he had no choice.
- The small claims court dismissed the case, concluding that the landlord’s actions were reasonable.
- The case was appealed to the District Court which concluded that the landlord should have denied the animal due to the other tenant’s pet allergies but dismissed the case due to the uncertainty of the law governing reasonable accommodations.
- The Iowa Supreme Court accepted the case for review.
- The Court concluded that the landlord’s accommodation of the support animal was not reasonable because the tenant with pet allergies was in the property first and the dog’s presence posed a direct threat to her health.
- The Court also ruled that the tenant with allergies was entitled to recover her claims of breach of lease and awarded damages in the amount of one month’s rent.
- The Court made it clear that this was a fact-specific case and there was no “one-size-fits-all test” that will lead to the same result with different circumstances, giving the example of a guide dog for the blind as an example where the accommodation may be required.
Unique Issues of the Case
- The letter from Clark’s psychiatrist indicated that due to “research” showing that “pets are therapeutic and beneficial to physical and mental health,” his professional opinion was that Clark would “benefit” from owning and caring for a dog. He asked the apartment community to allow Clark to have a pet (Emotional Support Animal or “ESA”).
- Management received the request for an accommodation and notified existing residents, asking if any had an allergy to dogs. Cohen responded that she did.
- The landlord contacted the Iowa Civil Rights Commission (ICRC) and explained that the landlord owned other properties that permitted pets and that they could rent to Clark in one of those properties.
- The ICRC staffer advised the landlord that moving Clark to another building was not a reasonable accommodation and that they should try to accommodate the needs of both residents.
- The Landlord allowed Clark to have his ESA join him on the apartment premises while trying to mitigate Cohen’s allergies. In doing so, the landlord had Cohen and Clark use separate assigned stairwells in an effort to keep Cohen free of the ESA’s dander. The landlord also purchased an air purifier for Cohen’s apartment to minimize her exposure to pet dander inside the apartment. The landlord explored installing “air lock” doors on each of the four floors of the apartment building to reduce the amount of air infiltration but ultimately decided it was not financially feasible because the cost estimate of doing so was $81,715.92.
Issues Considered by the State Supreme Court
The court considered two issues in addressing the case: (1) whether the ESA was a reasonable accommodation, and (2) whether the landlord had a good faith defense because it followed the guidance of ICRC staff.
The respondent argued that “it had no choice but to allow the [ESA] into the building and also try to accommodate Cohen’s allergies” after consulting with the ICRC about the issue. Respondent Clark contends that allowing the ESA was a reasonable accommodation, but Cohen argues that the actions were not reasonable given the burdens they imposed on her ability to enjoy living in her apartment.
One of the elements of the FHA stressed by the court was that landlords have a safe harbor in refusing a tenant’s requested accommodation if the tenancy “would constitute a direct threat to the health and safety of other persons…” HUD in fact has provided guidance stating “A housing provider may, therefore, refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal (e.g., keeping the animal in a secure enclosure).”
A key element in the case is that Cohen was in the building first. As the court stated, “Where the physical or mental well-being of tenants collide, we agree with Cohen that a priority-in-time test should be applied as a factor in the reasonableness analysis. As the well-known maxim goes, ‘first in time shall be first in right.’” In this case, being first in time tipped the balance in Cohen’s favor. Cohen signed her lease first. She had relied on the “no pet” policy provisions in the lease.
The Supreme Court reversed the district court’s dismissal of Cohen’s case. The holding of the court resulted from a “fact-specific balancing” required by law in assessing reasonable accommodation determinations. The court did not hold that in all cases an assistance animal should be rejected if another person in the building had allergies and would suffer from the presence of the animal. The balancing test would not necessarily produce the same result.
Reasonable accommodations relating to support animals require a fact-specific analysis and may include striking a balance between the rights of two disabled residents. In this particular case, the court was swayed by the principle of “first come-first served.” The resident Cohen was already living in the property when Clark requested his accommodation (the support animal). Due to the unique circumstances of a support animal vs. a service animal, the court believed that there were other options available to Mr. Clark – including living in another building that permitted pets that was owned by the same landlord. Since service animals, such as those that serve the blind, become acclimated to specific buildings, if this case had involved a service animal the finding may have been different.
So, what should a landlord do when an existing resident can prove that the presence of an animal will lead to significant medical problems? There is no single answer. However, I do have recommendations on how to proceed in these cases.
First, if possible, try to accommodate both residents. The landlord in this case did attempt to meet the needs of both residents but was unsuccessful. This does not mean that success could not be achieved in other cases. For example, getting the two residents to agree on a “dog-free” zone, such as the community room, may be possible. Especially if failure to reach such an agreement could result in the landlord denying the request for the assistance animal.
Second, if the reconciliation process does not work, apply the “priority-in-time” test. The decision may well tip in the favor of the resident that was living in the property first.
Third, if the property is a pet-free property, and someone (whether a new or existing tenant) requests an assistance animal, let the existing residents know that due to the requirements of the law, consideration is being given to allowing a dog in the building. Do not provide details regarding the resident requesting the animal or reasons why the animal is needed. If, as was the case here, an existing resident can prove a detrimental effect, granting the request would not be reasonable and should probably be denied. In this case, the “interactive process” with the applicant or resident who requested the animal would be required. This means that the landlord is obligated to work with the requester to try to find another solution (e.g., living in another building owned by the landlord).
Finally, in buildings that are pet-free and already have assistance animals in place, new residents should be informed that the building does contain assistance animals. This would give notice to anyone with allergies to animals that they may want to consider alternative living arrangements.
This case is a perfect example of the difficulties involved with the approval of assistance animals – especially support animals. Landlords must remember that each case must be considered on its own merits and that the rights of existing residents do play a role in the decision-making process. The landlord in this case was in a “no-win” situation, in that no matter what decision they made, a challenge was likely. The case does provide some guidance – and precedent – if faced with this particular situation and is instructive in the specific circumstance involving the rights of two disabled individuals.