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 is, to be blunt, completely wrong. 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.
The Court manages to reach this conclusion without considering that its decision puts the landlord squarely on the horns of a dilemma. Granting the accommodation exposes the landlord to state law liability for breach of lease while denying the request exposes the landlord to state and federal law liability for refusal to accommodate. As guidance the landlord has nothing but a nebulous “balancing test” that is admittedly fact specific, meaning that earlier court decisions are unlikely to be helpful as guidance on what to do.
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.”
Although they do not apply to claims by a third-party these cases and cases applying federal preemption more generally suggest that the FHA preempts any state law permitting non-disabled tenants to sue for a breach of lease that arises from the landlord’s granting a reasonable accommodation. It should not matter whether the landlord was right or wrong in granting the accommodation because any liability imposed on a landlord for the consequences of an accommodation to third-parties is bound to interfere with the landlord’s consideration of the accommodation request and to make it less likely the request will be granted. The decision in Cohen v. Clark and its balancing test are interesting, but there is no doubt the result is wrong. A tenant should never be permitted to sue a landlord based on the landlord’s granting of an accommodation request because allowing such suits undermines the purpose of the FHA.
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