Handling requests for reasonable accommodations under the federal Fair Housing Act, 42 USC § 3601 et seq. (“FHA”), can be one of the more daunting aspects of serving as a condominium or homeowners association board member. The potential legal risks that are attached with requests for reasonable accommodations, particularly if those requests are denied, are highlighted by statistics from the U.S. Department of Housing and Urban Development “HUD”, which show that 60% of all FHA complaints are related to reasonable accommodation and disability access denials. Consequently, addressing one reasonable accommodation request can be overwhelming enough, but what happens when you receive requests asking for conflicting accommodations, meaning that at least one of those requests likely will be denied? While there is no direct authority in Michigan on this situation, a 2020 case out of the Iowa Supreme Court provides condominium and homeowners association board members with a general roadmap of what to consider when they receive conflicting requests for reasonable accommodations and the balancing of interests that is required.
The Competing Claims for Reasonable Accommodations
In Cohen v Clark, 945 NW2d 792 (Iowa, 2020), Karen Cohen had medically documented, severe allergies to pet dander and she carried an EpiPen with her in the event she suffered from anaphylactic shock. Id. at 795. Due to her severe allergies, she sought out and rented an apartment in a building that did not allow pets. Just two months after she moved into the apartment, a second tenant, David Clark, moved into an apartment down the hall. Id. About a month after moving in, though, Clark requested a reasonable accommodation to the no-pets policy and asked that he be allowed to have an emotional support dog due to his mental illness. Id. at 795-96.
Upon receipt of this request, the landlord asked the other tenants in the building whether they had any allergies to dogs, and Cohen responded that she did. Id. at 796. The landlord contacted the Iowa Civil Rights Commission regarding these competing circumstances and was advised to try to reasonably accommodate both Cohen’s allergies and Clark’s need for an emotional support dog. Id. The landlord, then, assigned Cohen and Clark different stairwells for use and installed an air purifier in Cohen’s apartment to minimize her exposure to the dog dander; however, she still suffered allergic reactions from the presence of the dog in the building. Id. She later sued the landlord, claiming that he violated the lease agreement’s no-pets policy, and the landlord defended against her claim on the basis that he had to reasonably accommodate Cohen’s need for an emotional support dog. Id. at 796-97.
How Did The Court Determine Which Accommodation Request Should Be Granted?
The Iowa Supreme Court determined that between Cohen’s need for a pet-free building and Clark’s need for an emotional support dog, Cohen’s needs prevailed, primarily because she signed her lease first in reliance on the no-pets policy. Id. at 803. While this factor was the one that tipped the scales in Cohen’s favor, the Iowa Supreme Court weighed a number of factors before reaching this decision.
The Court considered the following 4 factors to resolve whose needs prevailed over the other’s:
1. Did the requested accommodations pose a direct threat under the Fair Housing Act?
42 USC § 3604 of the federal Fair Housing Act states that “it shall be unlawful – [. . .]
(f)(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap [. . .]
(3) For purposes of this subsection, discrimination includes – [. . .]
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling [. . .]
(9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”
Whether an accommodation will pose a direct threat to another’s health generally must be evidenced by “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” Entine v Lissner, unpublished opinion of Judge Algenon L. Marbley, Docket No. 2:17-cv-946 (SD Ohio, Nov 17, 2017) p 6 (italics original).
Relying on the FHA, and similar provisions of state law, the Court noted that “both state and federal law allow for the consideration of the accommodation’s effects on third parties in the reasonable accommodation determination . . . .” 945 NW2d at 801. As between Cohen and Clark, though, this factor, alone, did not tip the scales for the Court, which explained that:
Frankly, it’s clear that Cohen and Clark cannot satisfactorily coexist in the same apartment building. For Cohen, living in the same building as Clark’s ESA left her, at best, in a state of constant misery due to the allergic reactions she suffered from the ESA’s presence. Meanwhile, Clark’s mental health would suffer if he could not live in the apartment building without his ESA. Either way, one of the tenants would suffer negative health consequences if required to coexist in the same building with or without the ESA. Id. at 802.
However, as explained below, the direct threat posed by Clark’s emotional support dog to Cohen’s health, in conjunction with the other factors, weighed in Cohen’s favor.
2. Who signed the lease agreement first?
While it noted that this factor, alone, should not be the deciding factor in all competing accommodation claims, the Court stated that, based on the facts of this particular case, Cohen having signed a lease agreement first tipped the scales in her favor, reasoning:
[w]here 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 [. . .]
In this fact-specific inquiry, being first in time tips the balance in Cohen’s favor. Cohen signed her lease first. Approximately seven months after signing her lease and one month after Cohen moved into her apartment and Clark into his, Clark sought to waive the no-pets provision of the lease to accommodate his ESA. Cohen relied upon the express no-pets provision in the lease and 2800-1 LLC’s advertisement that the building was a no-pets building [. . .]
Clark signed his lease after Cohen, knew the building prohibited pets, and did not request a waiver of the no-pets provision until after his and Cohen’s leases began. Id. at 802-04.
The Court emphasized the need to consider the rights of other tenants and homeowners in the community when reviewing reasonable accommodation requests that would fundamentally alter the character of the community, as highlighted by the following examples:
(1) Cohen when she chose to rent an apartment in a pet-free building;
(2) Homeowners who chose to live in a condominium building that did not prohibit smoking in light of a request to ban smoking; and
(3) Tenants’ right to quiet enjoyment of their apartments in light of a request to accommodate a disabled tenant’s incessant yelling, screaming and door slamming.
Davis v Echo Valley Condo Ass’n, 945 F3d 483, 492 (CA 6, 2019); Groner v Golden Gate Gardens Apartments, 250 F3d 1039, 1045-46 (2001).
3. What medical documentation was provided to support the objection?
Another factor that weighed in Cohen’s favor was the fact that she did not simply object to the presence of the emotional support dog. She provided medical documentation that supported her claim that she was severely allergic to pet dander, and she also had her allergies retested after Clark’s emotional support dog was brought into the apartment building to further support her claim. 945 NW2d at 805.
4. Were alternative accommodations available?
Finally, the Court observed that the landlord had other apartments in buildings that permitted animals and noted that Clark could have discussed the possession of an emotional support dog before he signed his lease, in which case the landlord could have assigned him to one of those buildings; however, Clark waited to bring up the need for an emotional support dog until only after he signed his lease agreement and was assigned to an apartment in a pet-free building. Id. at 805. While not expressly saying so, the Iowa Supreme Court appeared to hold Clark partially responsible for the predicament due to the delay in his request, along with the landlord, who after receipt of his request, did not offer Clark an apartment in a pet-friendly building, even though vacant apartments were available at that time. Id. at 805-06.
All reasonable accommodation requests require careful review and analysis by condominium and homeowners association board members; however, Cohen v Clark emphasizes the scrutiny these requests require when granting them may fundamentally alter an aspect of the community that another homeowner relied on or have a negative impact on another member’s safety or health. Condominium and homeowners associations who receive a reasonable accommodation request, including conflicting reasonable accommodation requests, should contact a homeowners association attorney that is familiar with the federal Fair Housing Act to help them navigate the competing interests of these requests in compliance with federal and state laws.
Kayleigh B. Long is a senior attorney with Hirzel Law, PLC and focuses her practice in the areas of community association law and appellate litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Ms. Long has been recognized as a Michigan Rising Star in Real Estate Law by Super Lawyers since 2020, an award given to no more than 2.5% of the attorneys in the State of Michigan. Ms. Long has also made numerous presentations on community association law, along with having articles published in the Michigan Real Property Review. She can be reached at (248) 986-2290 or klong@hirzellaw.com.
