On June 30, 2020, the Iowa Supreme Court rendered a decision in Karen Cohen v. David Clark and 2800-1 LLC, an emotional support animal (ESA) case, involving one tenant in need of an ESA and another tenant with severe pet allergies. While the Court’s decision in the Cohen matter is factually specific, it nonetheless provides welcome guidance to landlords in these difficult situations.
Conflicting Interests Between Tenants
This case involved a tenant, plaintiff, Karen Cohen, who had a severe allergy to pet dander. Importantly, Cohen had a medically documented severe allergy to pet dander that caused her severe symptoms, even requiring her to carry an EpiPen. Cohen had specifically chosen to move into the apartment complex at issue due to the complex’s no-pets policy.
Sometime thereafter, the second tenant involved in this case, David Clark, moved into the same complex. Several months after moving in, Clark requested an ESA. Clark’s request for an ESA amounted to a request that the landlord, 2800-1 LLC, waive the no-pets policy as a disability-related accommodation.
After receipt of the ESA request, verified by Clark’s psychiatrist, the landlord inquired as to whether any tenants in the building had animal allergies. Cohen responded to the inquiry by informing the landlord of her severe, documented pet allergies.
Landlord Caught Between a Rock and a Hard Place
Generally, federal and Iowa fair housing law require a landlord to waive its no pet policy in response to a valid ESA request and as a reasonable accommodation for the tenant’s disability. Importantly, however, a landlord can lawfully deny an accommodation request if the specific assistance animal in question poses a direct threat to the health or safety of others, if such threat cannot be reduced or eliminated by another reasonable accommodation.
Having two disabled tenants with conflicting interests, the landlord was caught between a rock and a hard place. The landlord, apparently without counsel, opted to contact the Iowa Civil Rights Commission (ICRC) and request informal advice. During the telephone conversation, the landlord explained the situation and that it had additional apartments in other buildings and could accommodate the request by moving Clark to a different apartment unit. The ICRC responded that moving Clark would not be a reasonable accommodation and informed the landlord that it had to try to reasonably accommodate both Cohen’s allergies and Clark’s ESA rather than deny Clark’s request.
The landlord ultimately decided to allow the ESA on the premises, while also trying to mitigate the effect upon Cohen’s health, by providing Cohen with an air purifier and telling the two tenants to use different stairways.
Tenant Commences Litigation
Despite the landlord’s mitigation efforts, Cohen suffered allergy attacks with the ESA on the premises. Cohen filed suit against the landlord based upon her claims that the landlord had breached both the (1) no-pets provision of the lease agreement, and (2) implied covenant of quiet enjoyment of her apartment that all tenants enjoy.
Cohen also sued Clark, claiming that he had violated her quiet enjoyment of the unit.
The landlord defended the lawsuit, claiming that its no-pets policy waiver was a reasonable accommodation under the Iowa Civil Rights Act, it had no choice but to grant the ESA request, and it had a good faith defense because it followed ICRC staff’s advice.
The small claims court initially dismissed Cohen’s claims, which she appealed.
The Supreme Court Decision
After years of litigation and appeal proceedings, the Iowa Supreme Court ultimately reversed, and found in favor of Cohen. While the Iowa Supreme Court was careful to limit its ruling to the specific facts of the case stating, “[o]ur balancing in this case is not a one-size-fits-all test that will create the same result under different circumstances,” there are nonetheless takeaways landlords can glean from the decision.
The Court’s Conclusions and Takeaways for Landlords
1. The Court held that where the physical or mental well-being of tenants conflict with one another due to an ESA, a priority in time test is applied as one factor (but not the only or a dispositive factor) in the analysis as to the reasonableness of the accommodation.
- Cohen had signed her lease first in reliance on the landlord’s no-pets provision and only after that did Clark move into his unit and submit his ESA request. The Court reasoned that, because Cohen’s tenancy was prior in time to Clark’s tenancy and his ESA request and the ESA posed a direct threat to Cohen’s health, the landlord’s decision to allow Clark’s ESA was not a reasonable accommodation that should have been granted.
- The Court noted that the first-in-time factor “tipped the balance” in Cohen’s favor. The Court also explained that the first-in-time factor aligned with those of other courts that have rejected requested changes to a residential complex’s contract when those changes interfere with the rights of third parties.
- Takeaway: Landlords can and should consider this first-in-time principle in their analysis of accommodation requests where the well-being of two tenants conflict with one another. Though, landlords must remember the first-in-time principle is only one factor in their analysis.
2. The Court concluded that the ESA posed a direct threat to the health of this tenant, confirming that other tenants’ rights are properly considered in the balancing of needs in the reasonable accommodation analysis.
- That said, landlords must keep in mind that, in this case, Cohen’s allergy to pet dander was a severe, medically documented allergy, constituting a disability. In other words, both tenants had disabilities.
- That is not always the case. In published guidance from the U.S. Department of Justice (“DOJ”) in 2010 with regard to the Americans with Disabilities Act and service animals, the DOJ stated that general “allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.”
Takeaway: Landlords can and should consider the effects of ESAs (or other requested accommodations) on neighboring tenants but must be careful in considering any asserted effects and balancing the competing needs of their tenants. Landlords should seek counsel to help in such analysis. For example, a landlord may want to survey current tenants about any animal allergies when considering another tenant’s ESA request in a no-pets building. However, landlords should seek counsel before doing so, and must remember that tenants have a right to privacy regarding their health information.
3. In regard to the landlord’s good faith defense, the Court found that the advice received from the ICRC via telephone call was not binding, and that good faith was not a defense absent a defense made under Iowa Code section 562A.21, which the landlord had not properly raised.
- The Court explained that contractual liability is essentially strict liability, and a breach of a contract is a breach, whether committed in good faith or not.
- However, the Court also explained that Iowa Code section 562A.21(2) gives the landlord a defense to a breach of lease claim if the landlord “exercised due diligence and effort to remedy any noncompliance” and “any failure by the landlord to remedy any noncompliance was due to circumstances beyond the control of the landlord.” Unfortunately, the Landlord did not raise this defense, and the Court concluded it was waived.
- Landlords should seek counsel in defending these claims to ensure all defenses are properly raised, including the aforementioned defense.
- While conversations with the ICRC can be helpful, landlords should remember that this type of informal advice is not binding and does not provide them with an absolute defense if sued.
4. While the Court ultimately ruled against the landlord in this matter, the decision does provide good guidance and support to landlords in certain situations. In particular, the Court explained:
“In this case, the tenant asked to bring the ESA onto the premises approximately one month after his tenancy began. It appears the tenant could have been provided an apartment in a different building that did not have a “no pets” policy or that already had one or more ESAs. Indeed, if the tenant had broached the ESA with the landlord before moving in, the parties might have adopted this solution and this litigation might not have arisen. Notably, other courts have indicated that it is a reasonable accommodation for a landlord to offer a tenant an apartment in another building when the tenant’s need for an accommodation conflicts with the rights of another tenant.”
5. The Court expressly noted that the decision would not apply in situations involving service animals.
- The Court noted that its conclusion resulted from the fact-specific balancing the law required it to undertake in reasonable accommodation determinations, but noted:
"[We] are not holding that a visually disabled person with a service dog should be denied access to a “no pets” apartment building whenever a tenant with dog allergies is already living in that building and would suffer allergy attacks from the presence of the dog. That situation is not before us today. That both service animals and ESAs are types of reasonable accommodations under both the ICRA and the FHA does not mean, however, that the balancing test we describe in this opinion will necessarily end up with the same result when the animal is a service animal. For example, once a service animal has learned an apartment and an apartment building, there is a burden on requiring the tenant and the service animal to relocate to another apartment or building that might not exist for an ESA.”
While this landlord seemed to try its best navigating the waters of fair housing law and conflicting tenant interests, such efforts were not sufficient.
Hindsight is always 20/20, but perhaps this landlord should have continued to work through the interactive process with both tenants to find a goal that was acceptable to both tenants, should have informed Clark of the option of moving to another building, could have tried to obtain a formal opinion ruling from the ICRC, and/or should have sought counsel earlier in the process.
Ultimately, it is generally best if a mutually agreeable resolution can be worked out by all affected tenants and landlords, and this decision can be used as guidance in these types of situations in the future.