Support Animal Requests in No-Pet Buildings Are a Tricky Balancing Act
A recent ruling by the Iowa Supreme Court demonstrates just how dicey this situation can be — even when a board tries its best to accommodate everyone (Cohen v. Clark, Iowa Supreme Court No. 18-2173).
The Iowa Case
The case involved tenants in an apartment building with a no-pet policy, but, says Stephen Davis, an attorney with the firm Carmody MacDonald who represents more than 150 associations in the St. Louis, Mo., area, “there are certainly parallels in the HOA context.”
The lawsuit was filed by a tenant with severe, medically documented allergies to dander. Another tenant moved in after her and, a month into his lease term, sought a waiver of the no-pets policy as an accommodation for his mental illness.
In response, the manager for the building contacted other residents to determine if any had allergies and, when the woman said she did, reached out to the Iowa Civil Rights Commission for guidance. A commission staffer told him it would be unreasonable to move the new tenant to another building that allowed pets and advised him to try to accommodate both tenants.
So he allowed the dog and directed the two tenants to use different stairways. He also gave the allergic tenant an air purifier. All for naught — she continued to suffer allergy attacks and eventually sued the landlord for breach of her lease’s no-pet policy and breach of her right to the quiet enjoyment of her unit.
The case made it all the way to Iowa’s Supreme Court, which came down on the allergic tenant’s side. The court did state that its balancing of interests in the case wasn’t “a one-size-fits-all test,” but it left boards and managers facing similar circumstances with little useful guidance.
The Path of Least Resistance
There’s no doubt about it: These types of situations are among the thorniest your clients will face. “You’re dealing with volunteer board members who don’t necessarily have the expertise,” Davis says. Even the judges on the Iowa Supreme Court didn’t find the circumstances clear-cut — three of the court’s seven judges dissented with the ruling.
The lack of decisive guidance has caused some associations and managers to take the so-called easy way out.
“If a person applies for a service animal in a no-pet building, the board really can’t deny the request,” says Paul Grucza, director of education and client development at the Seattle-based management company CWD Group, Inc.
Robert Ducharme, a solo practitioner who has represented New Hampshire associations for 20 years, reluctantly agrees. “Too often, we get a note that just says the treating provider is prescribing an ESA because he thinks an ESA would be good, without the necessary details.
If a board then denies the request, the owner immediately reports it to HUD. “And there are a lot of HUD attorneys in the New England region who bend over backwards to let owners have ESAs without proper analysis,” Ducharme says.
“Associations have to let the animal in or have the brunt of HUD coming down on them.”
Allowing ESAs or service animals opens another can of worms, though. “You now have owners who are upset that there’s a dog on-site because they moved in because the community is no-pet.
“Board members sometimes face vile comments and attacks for allowing the owner to violate the rules, but they can’t explain why. If they say something about why the dog is there, they can get sued by HUD for disclosing a disability.”
Ideally, Ducharme says, a board could take the approach the building manager in Iowa took — getting the proper documentation from the treating provider and then checking with neighbors about allergies so the board can determine whether allowing the animal is reasonable. “It’s unreasonable to say you can have your ESA even if it makes people sick,” he says.
But this puts the board back in a Catch-22. “When you go to the neighbors to ask if they’re allergic because a dog might be moving in, you can’t say why the dog might be coming,” Ducharme says.