Friday, July 31, 2020


            Karen Cohen has a medically documented severe allergy to pet dander that causes nasal congestion, swollen sinuses, excess coughing, and a swollen throat. Due to her allergy, Karen needed an apartment community that did not allow pets.

             In 2015 Karen signed a one-year lease for an apartment; the term started in July 2016. In making her decision, Karen relied on Section 53 of the lease, which states: “No pets are allowed in the building or on the Premises at any time . . . Reasonable accommodations accepted.”

             A few months after Karen had executed her lease David Clark also signed a new lease for an apartment down the hall from Karen, for the same term commencing July 2016. David’s lease contained the same Section 53 no-pets prohibition.

             After both lease terms had commenced and both David and Karen had started to occupy their separate apartments, David presented the Landlord with a letter from his psychiatrist stating that his chronic mental illness caused “impairment in his ability to function.” The psychiatrist noted that David’s ownership and care for a dog would benefit his health and well-being.

             Based on this letter, David requested a reasonable accommodation to have his emotional support animal (ESA), a dog, with him at the apartment premises.

             The local property manager notified the other tenants of David’s request and asked if any tenants had dog allergies. Karen responded. Based on Karen’s severe allergies and David’s request for an ESA, the manager then contacted the Civil Rights Commission for an agency determination.

             The manager advised the CRC that the Landlord had other apartments in different pet-friendly buildings in the same community and could easily relocate David to accommodate his ESA. The CRC responded that moving David to another building was not a reasonable accommodation and informed the manager that the Landlord had to reasonably accommodate both David and Karen in their current apartments.

             Landlord elected to allow David’s ESA to join him in his apartment. At the same time, Landlord also considered ways to mitigate Karen’s allergies. Landlord then: (1) assigned separate stairwells to Karen and David in an effort to limit Karen’s exposure to the ESA’s pet dander; (2) purchased air purifiers for Karen’s apartment; and (3) explored the installation of air lock doors on each of the four floors of the apartment building to reduce the amount of air infiltration but ultimately rejected that $82,715 expense.

             The year-long accommodation efforts were insufficient to prevent Karen from experiencing allergic reactions to the ESA. Karen sued the Landlord in 2017 seeking one month’s rental ($1464) as damages, claiming that Landlord breached its no-pets agreement as well as the implied warranty of quiet enjoyment by allowing David to have a dog in the building. Landlord defended by claiming that it had no choice but to accommodate David’s reasonable request pursuant to State law, and as suggested by the CRC.

             The small claims court, holding for Landlord, concluded that Landlord made reasonable accommodations for both David’s and Karen’s needs. Karen appealed.

             The district court, unlike the small claims court, found that the Landlord should have denied David’s request for an ESA, as there was no reasonable (and affordable) solution to mitigate the harm to the health and safety of Karen. Even so, the district court dismissed Karen’s claims, holding that the law was unclear on this point.

             Karen and the Landlord both appealed to the Supreme Court. The Supreme Court was asked to resolve uncertainties regarding reasonable accommodations for an ESA, when the ESA causes a direct threat to another tenant’s health in the same multi-family community.

             Statutes governing this situation appear to be in direct conflict. 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. Further, a refusal to make reasonable accommodations constitutes unlawful discrimination.

             However, statutes also provide that a Landlord may refuse a Tenant’s requested accommodation if the tenancy would constitute a direct threat to the health or safety of other persons. In this situation, it seems that David’s requested accommodation could constitute a direct threat to Karen’s health.

             Karen points out to the Supreme Court that her lease was signed several months before David’s. And consequently, a priority-in-time test should be applied as a factor in the reasonableness analysis.

             The Supreme Court found a 1936 case that said, “first in time shall be first in right.” Based primarily on that analysis, “. . . being first tips the balance in [Karen’s] favor.”         

             82 pages later (of which 57 are dissents and one used the word protean!), Karen wins; Landlord loses. See Cohen v. Clark and 2800-1 LLC; Case No. 18-2173; Supreme Court of Iowa; June 30, 2020:

              Lessons Learned / Questions Asked / Issues Presented:

  1. Issue: This Landlord consulted the Iowa Civil Rights Commission for guidance before making a final decision. That proved to be no help at all, and in fact, the suggestions given caused this lawsuit. Does this jeopardize the informal, telephone, and email opinions and suggestions of similar CRCs across the nation – will you trust that guidance?

  1. Question: Will this cause you to rethink your decision strategy regarding the conflict between ESAs and those who are sensitive or allergic to pets?
  1. Issue: Do you think a different answer may have been furnished if this claim had been filed in federal court, primarily using the Americans with Disabilities Act and HUD guidance instead of Iowa laws?
  1. Question: Do you think this LL and T were truly adverse, or maybe they joined forces or otherwise cooperated to seek a ruling for the future? Recall that Karen’s claim was for $1464. Does this make sense that the initial judgment was appealed all the way to the Supreme Court, purportedly over $1464?

    Stuart A. Lautin, Esq.*

    * Board Certified, Commercial (1989) and Residential (1988) Real Estate Law, Texas Board of Legal Specialization

     Licensed in the States of Texas and New York