Today’s blog entry come from a decision of the Iowa Supreme Court on June 30, 2020. The result of this decision means that if you are in the State of Iowa, living in a multifamily complex or dormitory, and want an emotional support animal, you most probably are not going to be able to get one because the chances are someone will already be living in the complex that signed up to live in the complex intentionally because the complex had a no pets rule.
The case is Cohen v. Clark decided by the Iowa Supreme Court on June 30, 2020, which can be found here. As usual, the blog entry is divided into categories and they are: facts; majority reasoning; Justice Appel’s dissent; Justice McDonald’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
A tenant with pet allergies moved into an apartment building due to its no pet policy. She was severely allergic to cats necessitating her carrying an EpiPen for that situation. She was also allergic to dogs but to a lesser extent. She intentionally selected an apartment complex that did not allow for pets. The lease she signed did say that the landlord would make reasonable accommodations for those seeking emotional support animals or service animals. Subsequent to her moving in, another tenant petitioned the landlord for an emotional support animal, a dog. When that happened, the landlord sought out the advice of the Iowa Commission on Civil Rights to find out what it should do. The Iowa Civil Rights Commission staff informally advised the landlord that moving the tenants seeking an ESA to another building was not a reasonable accommodation and that the landlord had to try and reasonably accommodate the tenant’s allergies and the other tenant’s request for an emotional support animal. The landlord then sent out a letter to tenants asking if anyone had an allergy to the dog. When the plaintiff responded in the affirmative, the landlord granted the emotional support animal and also tried to mitigate the plaintiff’s allergies by having the tenants use separate assigned stairwells. The landlord also purchased an air purifier for the plaintiff’s apartment in order to minimize her exposure to pet dander inside the apartment. The landlord looked into installing airlock 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 of doing that was $81,715.92. The year-long effort to accommodate the plaintiff was insufficient to prevent her from having allergic reactions, and so she had to limit the amount of time she spent in the apartment building. Her allergic reaction was significant and she had to take multiple allergy medicine in addition to her daily allergy medication, including Benadryl every night, nasal spray, and twice a day nasal rinses.
On September 27, 2007, plaintiff brought a small claims action against the landlord and the tenant with the emotional support animal seeking one month’s rent and damages. Plaintiff alleged that the landlord breached the express covenant of the lease that provided for no pets and the implied warranty of quiet enjoyment by allowing the other tenant to have a dog on the premises as an emotional support animal. Plaintiff also alleged that the other tenant by having the emotional support animal violated her quiet enjoyment of her unit under Iowa state law. The landlord asserted as a defense that it had to reasonably accommodate the other tenant’s emotional support animal under Iowa state law and cross claimed for indemnification from the other tenant for any damage to the plaintiff. The Small Claims Court dismissed plaintiff’s case and it was appealed to the District Court. The District Court dismissed the claims of plaintiff saying that at the time the development took place the law was not clear. It also said that after a year of trying to accommodate the tenant with the emotional support animal, the landlord should have denied the request. Plaintiff appealed to the Supreme Court for discretionary review which was granted.
Reasoning of Majority in Reversing the Dismissal
- The Iowa Civil Rights Act housing provision is nearly identical to the federal Fair Housing Act.
- The Iowa Civil Rights Act and the Fair Housing Act distinguish between service animals, which require specific training, and emotional support animals while recognizing the validity of both kinds.
- Under 216.8A(3)(b) of the Iowa Civil Rights Act it is unlawful to discriminate against another person in the terms, conditions, or privileges of rental of a dwelling because of that person’s disability. §216.8A(3)(c)(2) states the refusal to make reasonable accommodations and rules, policy practices, or services, when the accommodations are necessary to afford the person equal opportunity to use and enjoy a dwelling constitutes unlawful discrimination. Finally, the Iowa statute, §216.8A(3)(e), provides landlords with a safe harbor in refusing a tenant’s request for an accommodation if the tenancy would constitute a direct threat to the health or safety of other persons or would result in substantial physical damage to the property of others.
- Under state and federal law, the landlord must generally grant a reasonable accommodation request for an emotional support animal if the person requesting the accommodation has a disability and a disability -related need for the emotional support animal.
- The latest HUD circular, which we discussed here, as well as the Iowa Civil Rights Act both allow a landlord to 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.
- The tenant requesting an emotional support animal has a psychological disability substantially limiting one or more major life activities.
- The plaintiff and the tenant with the emotional support animal cannot satisfactorily coexist in the same apartment building.
- No law in Iowa or any other jurisdiction clearly establishes how landlords should handle reasonable accommodation questions with emotional support animals.
- The physical well-being of a person does not trump the right to mental well-being and vice versa. So, other tenants rights are properly considered in the balancing the needs in the reasonable accommodation analysis.
- Where the physical or mental well-being of tenants collide, a priority in time test should be applied as a factor in the reasonableness analysis. That is, first in time is first in right.
- The first in time is first in right approach is backed up by the ADA cases talking about how a person in a seniority system who is no longer qualified for a current job does not have the right to bump others for a job that they are qualified for.
- Other courts have rejected changes to a residential complex’s contract when those changes interfere with the rights of third parties.
- The Fourth Circuit Court of Appeals has held that the potential for personal injury to third parties is a relevant factor in determining whether a person or entity violated the federal Fair Housing Act by rejecting a reasonable accommodation request.
- Potential allergic reactions of other tenants to an emotional support animal are a relevant factor in determining whether to grant a tenant’s accommodation request for the emotional support animal. That is, the rights of third parties do not have to be sacrificed on the altar of reasonable accommodation.
- Landlords need to explore the ability to grant the accommodation request in good faith before rejecting it.
- The priority in time factor can only been considered when the tenant objecting to the accommodation has priority in time and can provide medical documentation supporting the tenant’s objection.
- The balancing test may very well be different for a service animal, such as a guide dog, then for an emotional support animal.
- The tenant wanting the emotional support animal sought that accommodation one month after his tenancy began. It appears that the landlord could have provided that tenant with an apartment in a different building that did not have a no pets policy or that already had one or more emotional support animals.
- Other courts have said that it is a reasonable accommodation for landlords to offer a tenant an apartment in another building when the tenant’s need for an accommodation conflicts with the rights of another tenant.
- In a footnote, the court said that the leasing and property manager had testified that he had apartments in other buildings available that would allow pets, but he had been advised by the Iowa Civil Rights Commission that that would not be a reasonable accommodation.
- While the tenant wanting the emotional support animal had been in that building for 30 years, he had not demonstrated how that building was related to his disability. As such, the landlord had no obligation to take that into account in attempting to accommodate him.
- Good faith is not a defense to a breach of contract claim.
- Informal advise from the Iowa Civil Rights Commission is not binding as to what the law is.
- Since the landlord granting the emotional support animal was not a reasonable accommodation, that decision breaches the no pets clause in the lease. Further, plaintiff’s suffering from that decision also constitutes a breach of the covenant of quiet enjoyment.
- For reasons unknown, the landlord did not raise 562A.21(2) of the Iowa code that would have given the landlord a defense to a claim for damages and injunctive relief if the landlord can show that it exercised due diligence and made an effort to remedy any noncompliance and that the failure by the landlord to remedy that noncompliance was due to circumstances recently beyond the control of the landlord.
Dissenting Opinion of Justice Appel
- The landlord in the lease expressly reserved the ability to engage in reasonable accommodations.
- Plaintiff and the landlord are joining voices to persuade the court to adopt an approach to reasonable accommodations that is contrary to the informal advice received by the landlord from the Iowa Civil Rights Commission. As such, the landlord neglects to address important issues, such as whether an emotional support animal is a pet.
- The Iowa legislature recently enacted 216.8B. §2 of that statute provides the landlord must waive lease restrictions and additional payment normally required for pets on the keeping of animals for the assistance animal or service animal of a person with a disability. That waiver is mandatory and does not contain any express qualifications. That statute, §216.8(B)(4), also provides for criminal liability for a person who interferes with the rights of a person with a disability under that section.
- An accommodation is reasonable if it is both efficacious and proportional to the costs to implement it.
- Ample authority exists for the proposition that the use of an emotional support animal in a tenant’s housing may be a reasonable accommodation.
- Where landlords pursuant to a contract permitting reasonable accommodation to another tenant, allow an emotional support animal as an accommodation that does not constitute a fundamental change of the nature of the complex.
- The direct threat defense provision is a safe harbor available to a landlord and does not involve a balancing test.
- Little case law exists on whether a landlord must consider the health impact on parties or only the impact on the landlord and the person seeking the reasonable accommodation.
- When making a determination of reasonable accommodation, the landlord should consider all relevant interests, including the potential health and third parties. Reasonable accommodations should not be construed to allow landlords to completely ignore health concerns about the renters. Even if health considerations do not rise to a direct and substantial threat, the landlord should consider lesser health risks as part of the determination of whether an accommodation is reasonable.
- The tenant that is first in time is not an important consideration. Rather, what might be important is whether a landlord rejecting an accommodation could show that other tenant had substantial reliance interests superior to that of the cotenants seeking accommodation.
- Plaintiff knew from the beginning that the landlord might have to make reasonable accommodations for people seeking emotional support animals. So, this is not a situation at all like the employee seeking reasonable accommodations in the context of a seniority system.
- The record is clear that the tenant needing the emotional support animal needed the animal because it was necessary as a result of his disability and that he received substantial benefit from the emotional support animal.
- No facts were presented that plaintiff’s reaction to the emotional support animal was currently a serious threat to her health.
- Run-of-the-mill allergies to dogs does not in and of itself ordinarily override an interest like the other tenant’s need for an emotional support animal in determining whether the accommodation is reasonable. That is, if plaintiff’s allergy was reasonably manageable and she did not have the backdrop of a severe allergy to cats, the tenant needing the emotional support animal would have an interest likely overriding the interests of the plaintiff.
- Unclear from the record whether it would have been possible to move the tenant needing an emotional support animal to another building.
- When a landlord is faced with a conflict between a person needing an emotional support animal as an accommodation and a person suffering from serious and unmanageable allergy to animals, the landlord must explore the option of providing similar housing in other units owned by the landlord to what was currently enjoyed by either the person seeking accommodation or the person resisting. It is unclear from the record as to whether the other available housing was similar to either the tenant needing the emotional support animal or to the plaintiff. It also isn’t clear whether the possibility of relocation was pursued with either.
- Since no prior Iowa case law holds that a landlord must explore potential relocation options when faced with a conflict between tenants as is present in this case, a remand to the District Court for further proceedings is in order.
Dissenting Opinion of Justice McDonald
- The majority holding is not supported by the common law and is contrary to the letter and spirit of the fair housing laws.
- The Fair Housing Act when it comes to how a person is covered if they have a disability is still using the term “handicapped,” though Justice McDonald refused to use the term because recent disability nondiscrimination laws have clearly moved away from that.
- The Fair Housing Act at 42 U.S.C. §3604(f)(3)(B) and 24 C.F.R. §100.204(a), makes it unlawful for housing provided to refuse a person with a disability request for accommodations of rules, policies, practices, or services, when such accommodations are necessary to afford that person equal opportunity to use and enjoy a dwelling.
- To trigger a landlord’s duty to provide reasonable accommodations, the person with a disability must first make a request for that accommodation. Then, the landlord does not need to immediately grant the request for an accommodation. Instead, the landlord has an opportunity to make a final decision after conducting a meaningful review to determine whether the Fair Housing Act required the requested accommodation.
- A housing provider can deny a requested accommodation on the grounds that there is not a disability related need for the accommodation or on the grounds that the requested accommodation is not reasonable.
- Accommodation is not reasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
- The landlord is not required to sacrifice the interests of third parties on the altar of reasonable accommodation.
- The final decision to grant or refuse a requested accommodation is left with the provider and is not delegable.
- Under the Fair Housing Act, if a housing provider denies the requested accommodation wrongfully, then the person with the disability may recover actual and punitive damages plus attorney fees and costs.
- The direct threat exception is an affirmative defense.
- The Fair Housing Act does not give tenants a cause of action to compel a housing provider to deny a person with a disability request for accommodations or a cause of action seeking damages arising out of the landlord’s decision to grant a person with a disability request for an accommodation. Rather, it only gives a private cause of action to any aggrieved person, which the plaintiff is not. That is, the plaintiff could not claim that she was injured by a discriminatory housing practice nor could she claimed that she would be injured by a discriminatory housing practice about to occur. Accordingly, a tenant in the same building adversely affected by a landlord’s decision to grant a request for accommodation has no cause of action under the Fair Housing Act.
- Iowa code 8B(1)(A), just enacted, says that an assistance animal is an animal qualifying as a reasonable accommodation under the Fair Housing Act. That statute says that landlord must waive restrictions on pets when an assistance animal or or service animal is involved. It also imposes criminal liability for interference with the right to use an assistance animal.
- Under the fair housing laws, the duty to provide reasonable accommodation does not distinguish between service animals and assistance animals. Therefore, that the animal in this case is an emotional support animal rather than a service animal is immaterial to the outcome of the case.
- The parties have not presented an adversarial legal case. Instead, they jointly presented a legislative briefing seeking to change the fair housing laws to take into account the escalating costs to landlords and allergic cotenants due to the increased use of emotional support animals. That kind of question is reserved for the legislature and not to the courts.
- Any contract between the landlord and tenant has to be interpreted in light of the fair housing laws.
- The contract specifically allows for reasonable accommodations. Therefore, when the landlord granted a reasonable accommodation request to another tenant, the landlord could not have been in breach. Also, the plaintiff was on notice of this from the moment she signed the lease. As such, the plaintiff’s unilateral mistake as to what the lease requires cannot support her claim for liability against the landlord.
- An accommodation is unreasonable within the meaning of the fair housing laws only where it imposes an undue financial and administrative burden on the housing provider or where it fundamentally alters the nature of the provider’s operations.
- A waiver of a provision to allow a person with a disability to keep an assistance animal on the premises is per se a reasonable accommodation.
- The direct threat defense is an exception to the duty to provide reasonable accommodations and does not change the meaning of what is a reasonable accommodation.
- The direct threat defense is intended to establish an affirmative defense available to landlords and not to provide a basis for claims asserted by neighbors.
- The majority opinion has weaponized the direct threat affirmative defense into a cause of action for neighbors to sue persons with disabilities and landlords. The lack of any statutory right or remedy in the Iowa Civil Rights Act for tenants affected by a person with a disability exercise of his or her right counsels against creating a private cause of action allowing that.
- Any direct threat analysis must be an individualized assessment relying on objective evidence about the specific animal’s actual conduct. Plaintiff does not ask the court to consider the animal’s actual conduct or overt acts. The guidelines prohibit a housing provider from making categorical exclusion based upon breed, size, and weight limitations. The categorical exclusion here is even larger because it would disallow, dogs, and any other animal creating pet dander. Such a categorical exclusion falls outside the direct threat defense.
- Plaintiff did not meet the high burden of establishing that the other tenant’s emotional support animal posed a significant risk of substantial harm to her health. That is, the record is not clear as to whether what was involved was just run-of-the-mill allergies or something more significant than that.
- The majority opinion leads to the conclusion that the landlord breached the same provisions of the lease agreement with respect to each of the tenants in the building, which goes too far.
- Cold like symptoms do not constitute a constructive eviction.
- The laws of contract and quiet enjoyment do not require a landlord to aggressively deny the statutory rights of persons with disabilities and risk substantial civil and criminal liability. So, under the doctrine of prevention by government regulation, the landlord cannot be sued for any breach of contract or breach of the warranty of quiet enjoyment under the circumstances. Here the landlord has acted in good faith by trying to figure out the situation for a year.
- While the landlord’s efforts to deal with both tenant’s situation were not successful, that harm to the plaintiff was without legal injury under the common law. Without a legal injury, plaintiff has no claim.
- The holding of the majority is a prohibited discriminatory housing practice violating the letter and spirit of the fair housing laws.
- The Fair Housing Act, 42 U.S.C. §3615, provides that any law of the state purporting to require permitting an action that is a discriminatory housing practice is invalid.
- Case law also makes clear that the Fair Housing Act also provides relief not only from policies adopted and action taken with discriminatory intent, but also from the application of facially neutral standards having a discriminatory effect upon a protected class, such as persons with disabilities. So, the first in time first in right rule, is a discriminatory housing practice violating 42 U.S.C. §3615.
- The majority opinion creates financial incentive for cotenants to sue persons with disabilities seeking reasonable accommodation and the landlord granting of the reasonable accommodation.
- The majority opinion allows a cotenant to override statutory authority granted to a housing provider and demand the provider deny requested accommodation under the threat of a lawsuit all without bearing any of the financial consequences if the denial is in fact wrong. Further, if the cotenant prevails on her claim, the housing provider has to pay damages. If the cotenant loses, the cotenant is only out the small claim filing fee. So, by placing the financial risk and persons with disabilities and housing providers, the majority opinion discourages persons with disabilities from seeking reasonable accommodation and discourages landlords from granting reasonable accommodations, all of which is contrary to the spirit of the fair housing laws.
- All of the opinions ignore that emotional support animals do not appear in the Fair Housing Act or in their final implementing regulations at all. Rather, emotional support animals originally came out in a circular in 2013 and then again in a more recent circular this year, which we discussed here. As mentioned previously, it is highly doubtful under Kisor v. Wilkie, discussed here, that the HUD circular would be given deference by a court since the circular is not even interpreting a regulation let alone an actual statutory provision.
- There wouldn’t be an issue if emotional support animals were not allowed at all in dwellings under the Fair Housing Act. As mentioned above, under Kisor a court would be free to pay no attention to the HUD circular if it so desired.
- The line between an emotional support animal and a service animal can be very small. A service animal is any dog that has been trained to engage in recognition and response with respect to an individual’s disability. Depending upon the disability and the breed of dog, that may not be that hard to pull off. Accordingly, this decision is a strong incentive for anyone needing an animal in their dwelling in order to deal with the disability for them to train the dog to engage in recognition and response with respect to the particular issues they deal with. Finally, remember under the ADA, miniature horses get treated similarly as dogs even if they are not technically service animals.
- Since both parties were essentially on the same page, I can’t see how this gets appealed to anywhere.
- The first in time first in right approach has its problems. However, Justice Appel’s approach has its problems as well. The first in time is first in right is absolutely a facially neutral policy that discriminates against persons with disabilities. On the other hand, a balancing of the interest forces a jurist to compare disabilities, which is a real nightmare.
- The bottom line of this decision is that a landlord in Iowa would have to be out of their minds to grant an emotional support animal in a multifamily or dormitory context as undoubtedly there are existing tenants or members of a dormitory with allergies, with some of those likely significant. Of course, if the landlord does deny the emotional support animal, then the tenant seeking the emotional support animal will contact HUD. HUD will use its circular to find that the landlord is violating the Fair Housing Act. So, the landlord is caught between following a HUD circular and following Iowa law as the Iowa Supreme Court interpreted it. Once the landlord is sued by HUD, the landlord would do well to take Justice McDonald’s opinion as its defense and also seek a declaratory relief as to what it should do.
- I can see how Justice McDonald would say that direct threat is being weaponized and also being used to change the meaning of reasonable accommodations.
- I know there are individuals out there who believe that emotional support animals simply do not do what they claim to do. I respect that. However, I do know that dogs, for example, do help people in anxiety attacks redirect themselves out of them even if it means just simply hugging the dog. So, emotional support animals, particularly when it comes to dwellings, may play a very critical role in helping a person with a disability take advantage of that dwelling and live independently.
- The trend with emotional support animals is clear. That is, the trend is very much against them. That said, the line between an emotional support animal and service animals can be small indeed. Decisions like this as well as the upcoming Department of Transportation regulations, create a strong incentive for individuals to have their service animals trained by someone or by themselves to engage in recognition and response to ameliorate the effects of their disabilities..
- Definitely look for copycat litigation building on the Iowa case. When that happens, if you are a landlord, I would seek to get HUD involved. If the HUD circular means anything, which it may not, I would think that HUD would want to get involved in order to vindicate its circular.
- How much medical documentation a person must provide to be able to take advantage of the priority in time test laid out by the Iowa Supreme Court is unclear.
- The Iowa Supreme Court decision is limited to emotional support animals. A very different conclusion may follow if a service animal was involved.
- For a similar case, see Entine v. Lissner.
- Never forget about the interactive process and start it early.
- A really good idea for landlord to have knowledgeable ADA/FHA attorneys on retainer.
- Very strange that the defendant did not raise the Iowa statute giving it a defense to damages and injunctive relief because it did seemingly exercised due diligence and the failure of the due diligence was beyond the landlord’s control. As such, it makes you wonder whether a real legal dispute existed.
- Looking at Iowa Code 216.8B(1)(a), the statute specifically refers to an assistance animal under the “Fair Housing Act,” and under the, “Rehabilitation Act.” As we have discussed already, the Fair Housing Act does not define assistance animal. Instead, it is a HUD circular. Also, a brief search had me encountering great difficulty in finding any Rehabilitation Act regulations talking about assistance animals. I am not saying that such regulations don’t exist, but I am saying that they are not easily found. So, an argument can be created that an assistance animal as defined by the IA statutory provision simply does not exist.
- 24 C.F.R. §100.400 does contain provisions prohibiting interference with rights a person has under the Fair Housing Act. Assuming the HUD circular is something that courts must deal with, a major assumption, then the majority opinion absolutely encourages interference with a federally protected right in violation of the Fair Housing Act. The majority opinion also eviscerate the Iowa code statutory provision prohibiting interference when it comes to a person seeking an assistance animal.
- While the FHA use the term handicapped in discussing who is protected, don’t you use it. The term “handicapped,” has been offensive to persons with disabilities for at least 30 years.