This blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4)
The Iowa Supreme Court’s decision in Cohen v. Clark should encourage landlords to work a little harder when dealing with animal accommodation requests. This is because it suggests landlords can be liable to non-disabled tenants if they offer a disabled tenant the wrong accommodation. The case offers a “balancing test” for deciding whether the landlord did the right thing, but the test still requires landlords who receive an accommodation request to choose between the risk of a state court lawsuit for breach of lease and a HUD investigation or federal court lawsuit for failure to accommodate.
The plaintiff was a tenant with allergies who chose a no pets apartment for that very reason. When the landlord permitted another tenant to keep an emotional support animal as a reasonable accommodation under the Iowa Civil Rights Act, the first tenant sued. He claimed he had been forced out of his apartment because the animal aggravated his allergies despite efforts by the landlord to mitigate the effect of having the animal in the same building. Like any landlord-tenant dispute the case went through the Iowa state court system, and because it involved advice from a state agency the discussion centered on provisions in the Iowa Civil Rights Act rather than the Fair Housing Act. However, the Iowa Supreme Court observed that:
The ICRA’s housing provision is nearly identical to the Federal Fair Housing Act (FHA), compare Iowa Code section 216.8A(3)(c)(2), with 42 U.S.C. § 3604(f)(3)(B) (2018), so cases interpreting the FHA may be instructive in our interpretation of the Iowa Act.
In other words, the choice of state or federal law didn’t really matter, and in fact the Court relied mostly on federal FHA precedents because there are almost no Iowa Civil Rights Act cases.
The Court ruled for the plaintiff. The state law aspects of the decision were straightforward. The plaintiff had a lease that included at least an implied obligation to keep the apartments pet free and the landlord breached that lease by allowing pets. It rejected the landlord’s first line of defense, which was that it acted on informal advice from the Iowa Civil Rights Commission to the effect that the landlord had no choice but to permit the emotional support animal. The Court found a landlord could not rely on that kind of informal advice. The Court then engaged in its own analysis of whether the landlord was excused from complying with the lease by its reasonable accommodation obligation. It applied a balancing test that weighed the interests of the parties to decide which tenant would have to give in some respect. It found in this case the landlord should have denied the disabled tenant’s ESA request because there were other equal accommodations possible that would not have interfered with the plaintiff’s rights. Having made the wrong choice, the landlord was liable to the non-disabled tenant for breach of lease.
This decision raises an immediate question; that is, should the FHA have given the landlord an absolute defense. It is clear that the FHA preempts state law when they are in conflict. In Astralis Condo. Ass’n v. Sec., U.S. Dept. of Hous. and Urb. Dev., 620 F.3d 62 (1st Cir. 2010), for example, the First Circuit refused to recognize a defense to an accommodation claim based on a conflicting local statute. It held that: “Astralis must regulate the use of common elements in compliance with the FHAA’s anti-discrimination policies, regardless of local law.” A step beyond relying on state law as a defense to an FHA claim is the use of state law to claim affirmative relief for damages arising out of compliance with the FHA. In S & R Dev. Estates, LLC v. Town of Greenburgh, New York, 336 F. Supp. 3d 300 (S.D.N.Y. 2018) a property owner whose deed restrictions violated the anti-discrimination provisions in the FHA sought compensation under a state law for the loss of value the elimination of those restrictions would cause. The Court rejected the claim, holding that: “Enforcing a state statute that compensates an FHA violator would undermine Congress’s purpose in achieving the result of the availability of fair housing.”
This was not, however, a situation in which state law demanded one thing and the FHA demanded another. State law, according to the Iowa Supreme Court, only required that the landlord look for a solution that would minimize harm to other tenants, not that it deny the accommodation entirely. The situation arose, I suspect, because the landlord did not understand that when granting an accommodation it can (a) offer an alternative that is better suited to the landlord’s needs or (b) impose conditions necessary to make the accommodation reasonable. Better suited to the landlord’s needs might mean offering a different apartment not close to a tenant with animal allergies. Imposing conditions might mean requiring that the animal not linger outside near the other tenant’s apartment or taking similar steps to minimize contact between the other tenant and the animal.(5) The key, as I often advise my clients, is to treat the accommodation request as a problem to be solved rather than a demand that must be granted or denied with nothing in between. This requires a little more work by the landlord, but is a good way to avoid being stuck between the cost of litigation with an existing tenant and a HUD complaint by a new tenant.
² The bill can be found at https://www.flsenate.gov/Session/Bill/2020/1084
³ A list of state laws dealing with service dogs in an ADA setting can be found at https://www.animallaw.info/topic/table-state-assistance-animal-laws. Information on laws concerning assistance animals in housing can be found at https://www.animallaw.info/content/fraudulent-service-dogs
4. HUD has tried to help as well, not with great success. See HUD’s new Guidance on assistance animals
5. I’m assuming the requesting tenant had a real disability and a real need for the emotional support animal, both of which are extremely unlikely given the complete lack of any scientific evidence that emotional support animals are ever necessary for a person with a disability and the corresponding low odds that a person whose only mental health treatment is such an animal actually suffers from a disability. The landlord’s first line of defense is a well crafted set of policies and procedures that weeds out fake requests while minimizing the risk of a HUD investigation.