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
Result
Unique Issues of the Case
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.
Finding
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.
Lessons Learned
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.
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