Karen Cohen v. David Clark and 2800-1 LLC

IN THE SUPREME COURT OF IOWA
No. 18–2173
Filed June 30, 2020
KAREN COHEN,
Appellant,
vs.
DAVID CLARK and 2800-1 LLC,
Appellees.
Appeal from the Iowa District Court for Johnson County, Chad
Kepros, Judge.
A tenant appeals a district court ruling dismissing her claims
against her landlord and a neighboring tenant stemming from the
landlord’s waiver of its no-pets provision in the lease to accommodate the
neighboring tenant’s emotional support animal. REVERSED AND
REMANDED.
Christopher Warnock of The Tenants’ Project, Iowa City, for
appellant.
Amy L. Evenson of Larson & Evenson, Iowa City, for appellee David
Clark.
Erek P. Sittig of Holland, Michael, Raiber & Sittig, PLC, Iowa City,
for appellee 2800-1 LLC.
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CHRISTENSEN, Chief Justice.
This case involves a tenant with pet allergies who moved into an
apartment building due to its no-pets policy, a neighboring tenant who
sought a waiver of the no-pets policy for his emotional support dog, and a
landlord in a pickle trying to accommodate both of them. In an attempt to
please both parties, the landlord allowed the emotional support dog on the
premises while requiring the two tenants to use different stairways and
providing an air purifier for the tenant with pet allergies. These measures
failed to prevent the tenant from suffering allergic attacks. She sued the
landlord and her neighboring tenant in small claims court for breach of
the lease’s no-pets provision and interference with the quiet enjoyment of
her apartment. As a defense, the landlord asserted that its waiver of the
no-pets policy was a reasonable accommodation that it had no choice but
to grant under the Iowa Civil Rights Act (ICRA).
The small claims court dismissed the case, concluding the landlord’s
accommodations were reasonable. On appeal to the district court, the
district court concluded the landlord should have denied the emotional
support dog request due to the other tenant’s pet allergies but dismissed
the case due to the uncertainty of the law governing reasonable
accommodations for emotional support animals. Both tenants filed
applications for discretionary review, and the landlord filed a consent to
discretionary review. We granted discretionary review and retained the
appeal.
Under our highly fact-specific inquiry that balances the parties’
needs, we conclude the landlord’s accommodation of the emotional
support dog was not reasonable because the tenant with pet allergies had
priority in time and the dog’s presence posed a direct threat to her health.
We also conclude that the tenant suffering allergic attacks was entitled to
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recover on her claims of breach of lease and breach of the covenant of quiet
enjoyment and remand for an award of her requested damages of one
month’s rent. To be clear, our holding today is based on the specific facts
of this case. Our balancing in this case is not a one-size-fits-all test that
will create the same result under different circumstances, such as when
the animal at issue is a service animal for a visually disabled person.
Nevertheless, the fact that the tenant with allergies was first in time and
the dog posed a direct threat to her health tips the balance in her favor in
this case. Thus, we reverse the district court’s dismissal.
I. Factual and Procedural Background.
Karen Cohen has a medically documented severe allergy to pet
dander that causes nasal congestion, swollen sinuses, excess coughing,
and, at times, a swollen throat. Her allergic reaction is more severe when
she is exposed to cats, compared to dogs, requiring her to carry an EpiPen
to protect against anaphylactic shock if she is exposed to cat dander.
Cohen’s allergy to cats used to be the same as her allergy to dogs but
progressed through repeated exposure, and she worried that her allergy to
dogs would similarly progress if she were repeatedly exposed to their
dander.
Due to her severe pet allergies, Cohen sought an apartment building
that did not allow pets. On November 11, 2015, she entered into a written
lease agreement to rent an apartment from 2800-1 LLC at a rent of $1464
per month in Iowa City for the term of July 21, 2016 to July 12, 2017. In
deciding to enter a lease agreement with 2800-1 LLC, Cohen relied upon
section 53 of the written agreement, which states,
No pets are allowed in the building or on the Premises at any
time. Tenants may be assessed labor cleanup charges (if
applicable) for each violation. Tenants agree to an increase in
the rental deposit up to the maximum allowed by law in the
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events of non-compliance with pet prohibitions. Reasonable
accommodations accepted.
On January 18, 2016, approximately two months after Cohen
entered into her lease, David Clark entered into a written lease agreement
with 2800-1 LLC to rent an apartment down the hall from Cohen’s for the
term of July 21, 2016 to July 12, 2017. Clark’s lease contained the same
no-pets provision as Cohen’s lease. After Clark’s and Cohen’s leases
began, Clark presented 2800-1 LLC with a letter from his psychiatrist on
or around August 23, which explained Clark’s chronic mental illness
causing “impairment in his ability to function.” The psychiatrist noted,
Research has shown that pets are therapeutic and beneficial
to physical and mental health. In my professional opinion,
owning and caring for a dog would benefit his health and well-
being. Please allow David to include a pet on his lease.
Clark requested a reasonable accommodation to have his emotional
support animal (ESA), a dog, with him on the apartment premises.
Jeffrey Clark (no relationship to plaintiff), the leasing and property
manager, notified the other tenants in the building of the request to
accommodate the ESA and inquired about whether any tenant had
allergies to dogs. Cohen responded, detailing her allergies to cats and dogs
and the symptoms associated with those allergies. After receiving Cohen’s
response, Jeffrey contacted the Iowa Civil Rights Commission (ICRC) and
requested the ICRC’s review or a formal agency determination even though
no party ever filed a complaint. Jeffrey explained to the ICRC employee
over the phone that 2800-1 LLC had apartments in other buildings
available that allowed pets and could accommodate Clark’s request by
renting him a different apartment in a different building. The ICRC staffer
advised Jeffrey that moving Clark to another building was not a reasonable
accommodation and informed Jeffrey that he had to try to reasonably
accommodate both Cohen’s allergies and Clark’s ESA rather than deny
5
Clark’s ESA request. There was no finding by the ICRC that allowing
Clark’s ESA in the building despite Cohen’s allergic reactions would be a
reasonable accommodation.
2800-1 LLC allowed Clark to have his ESA join him on the
apartment premises while trying to mitigate Cohen’s allergies. In doing so,
2800-1 LLC had Cohen and Clark use separate assigned stairwells in an
effort to keep Cohen free of the ESA’s dander. 2800-1 LLC also purchased
an air purifier for Cohen’s apartment to minimize her exposure to pet
dander inside the apartment. 2800-1 LLC explored installing “air lock”
doors on each of the four floors of the apartment building to reduce the
amount of air infiltration but ultimately decided it was not financially
feasible because the cost estimate of doing so was $81,715.92.
The year-long accommodation efforts were insufficient to prevent
Cohen from having allergic reactions to the ESA, and she had to limit the
amount of time she spent in her apartment building. Cohen testified that
her “nose was constantly stuffy” and her “sinuses were swollen.” She
further testified that “[f]or a certain period of time [her] throat did feel like
it was starting to swell.” Cohen thought perhaps someone was fostering a
cat for a brief period of time when her throat was swelling up because that
is a symptom she typically experiences when exposed to cats. However,
she continued to experience other side effects of her allergy to dogs as well
as cats throughout her time living in the apartment building. She
explained that she was “constantly coughing or trying to get excess mucus
out of [her] vocal fold area,” as if she had a permanent cold. Cohen was
taking multiple allergy medicines in addition to her daily allergy
medication, including Benadryl every night, nasal sprays, and twice-a-day
nasal rinses.
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On September 27, 2017, Cohen brought a small claims action
against 2800-1 LLC and Clark seeking one month’s rent as damages.
Cohen alleged 2800-1 LLC breached the express covenant of her lease that
provided for no pets and the implied warranty of quiet enjoyment by
allowing Clark to have his dog on the premises as an ESA. She also alleged
Clark, through the presence of his ESA, violated her quiet enjoyment of
her unit under Iowa Code section 562A.17(7) (2017), Iowa’s landlord and
tenant law. 2800-1 LLC asserted as a defense that it had to reasonably
accommodate Clark’s ESA under Iowa Code section 216.8A(3)(c)(2), the
ICRA. 2800-1 LLC cross-claimed for indemnification from Clark for any
damage to Cohen.
Following a January 24, 2018 hearing on the matter, the small
claims court dismissed Cohen’s case on July 1. The small claims court
concluded 2800-1 LLC made reasonable accommodations of both Clark’s
and Cohen’s needs.1 Consequently, the small claims court determined
Cohen had no claim for breach of contract or quiet enjoyment. The small
claims court also explained there was no authority under Iowa law to allow
a claim between cotenants for Cohen’s claim against Clark for breach of
quiet enjoyment.2 Cohen filed a timely notice of appeal to the district court
three days later.
1The small claims court thought 2800-1 LLC made reasonable accommodations
largely because it noted Cohen failed to adequately inform 2800-1 LLC that she was
continuing to have problems with her allergic response to the dog despite 2800-1 LLC’s
measures to mitigate her allergy. The district court amended the small claims court’s
factual finding that Cohen failed to adequately inform 2800-1 LLC that its
accommodations were not working to alleviate her allergy, finding instead that
2800-1 LLC was aware its attempts to accommodate Cohen’s allergy had failed.
2Cohen waived her claim against Clark on appeal to the district court,
acknowledging 2800-1 LLC would be liable for any breach of contract rather than Clark.
The parties have likewise not briefed that issue on appeal to our court, so we deem
Cohen’s argument that Clark is liable for breach of quiet enjoyment waived and do not
consider it further. In re Estate of Waterman, 847 N.W.2d 560, 568 n.11 (Iowa 2014)
7
On appeal to the district court, the district court concluded 2800-1
LLC made sufficient efforts that would have justified denying Clark’s
request for reasonable accommodation or asking him to move to another
apartment building. The district court explained,
That conclusion is based on the good faith effort to make a
reasonable accommodation and the inability to identify a
solution to mitigate the harm to the health and safety of Ms.
Cohen. In essence, having attempted to accommodate the
request and being unable to do so, the Landlord could and
should have denied Mr. Clark’s request at that point.
Nevertheless, the district court dismissed Cohen’s claims against
2800-1 LLC and Clark because, at the time these developments took place,
the law was “not clear.” The district court reasoned,
The Landlord did consult with the Iowa Civil Rights
Commission and acted on their advice. [It] took significant
steps to accommodate both parties to the best of [its] ability
and resources. Therefore, the need for a new and clearer test
may remain outstanding in the Iowa courts, but under the law
as it was, Landlord did not believe [it] had the option to decline
the request and [it] made every effort to mitigate the effect of
that result on Ms. Cohen.
Cohen filed an application for discretionary review on December 10.
2800-1 LLC subsequently filed a consent to discretionary review on
January 3, 2019, and Clark filed an application for discretionary review
on January 8. We granted the parties’ requests for discretionary review
and retained the appeal.
II. Standard of Review.
“In a discretionary review of a small claims decision, the nature of
the case determines the standard of review.” De Stefano v. Apts.
Downtown, Inc., 879 N.W.2d 155, 164 (Iowa 2016) (quoting GE Money
Bank v. Morales, 773 N.W.2d 533, 536 (Iowa 2009)). The parties agree
(“[The parties] have not briefed that issue on appeal. We therefore deem this argument
waived and need not consider it further here.”).
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that we review small claims actions tried at law for correction of errors at
law. Id. This includes a review of statutory construction. Id. They also
agree that we are bound by the district court’s factual findings on appeal
if they are supported by substantial evidence. Id.
Courts vary in their determination of whether a reviewing court
must treat the issue of a reasonable accommodation determination as a
question of fact or a mixed question of law and fact.3 We typically review
the lower court’s reasonable accommodation determination as a factual
finding by the district court. See Palmer Coll. of Chiropractic v. Davenport
Civil Rights Comm’n, 850 N.W.2d 326, 342–43 (Iowa 2014) (collecting cases
3See, e.g., Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 419 (6th Cir. 2020) (“The
reasonableness of a proposed accommodation is a question of fact.”); Reyazuddin v.
Montgomery County, 789 F.3d 407, 416 (4th Cir. 2015) (noting the question of a
reasonable accommodation is a question of fact); Noll v. Int’l Bus. Machs. Corp., 787 F.3d
89, 94 (2d Cir. 2015) (“The reasonableness of an employer’s accommodation is a ‘fact-
specific’ question that often must be resolved by a factfinder.”); Antoine v. First Student,
Inc., 713 F.3d 824, 831 (5th Cir. 2013) (“Whether an accommodation is reasonable is a
question of fact.”); Carter v. Pathfinder Energy Servs., 662 F.3d 1134, 1146 (10th Cir.
2011) (“Whether part-time work ‘is a reasonable accommodation under the ADA is a
mixed question of law and fact involving primarily legal principles.’ ” (quoting Smith v.
Diffee Ford–Lincoln–Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002))); EEOC v. UPS
Supply Chain Sols., 620 F.3d 1103, 1110 (9th Cir. 2010) (“The reasonableness of an
accommodation is ordinarily a question of fact.” (quoting Lujan v. Pac. Mar. Ass’n, 165
F.3d 738, 743 (9th Cir. 1999))); EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d
790, 796 (8th Cir. 2007) (“Whether an accommodation is reasonable is a question of fact
to be decided by a jury.”); Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002)
(“Generally, the question of whether a proposed accommodation is reasonable is a
question of fact.”); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.
1998) (“The reasonableness of a requested accommodation is a question of fact.”); Carter
v. Bennett, 840 F.2d 63, 64–65 (D.C. Cir. 1988) (noting the ultimate determination of
whether government provided reasonable accommodation to person with disability is not
a question of pure fact but a mixed question of law and fact); Aubrey v. Koppes, 383 F.
Supp. 3d 1203, 1215 (D. Colo. 2019) (“Whether an accommodation is reasonable under
the ADA is a mixed question of law and fact.” (quoting Mason v. Avaya Commc’ns, Inc.,
357 F.3d 1114, 1122 (10th Cir. 2004))), appeal docketed, No. 19–1153 (10th Cir. Apr. 29,
2019); Warren v. Delvista Towers Condo Ass’n, 49 F. Supp. 3d 1082, 1088 (S.D. Fla. 2014)
(“[W]hether [an ESA] poses a direct threat that cannot be mitigated by another reasonable
accommodation[] is not a question of law, it is distinctly a question of fact.”); Tate v. Potter,
No. 04–61509, 2008 WL 11400757, at *5 (S.D. Fla. Mar. 25, 2008) (holding that a
reasonable accommodation is “not a simple question of fact” but “a mixed question of law
and fact”).
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holding that Americans with Disabilities Act reasonable accommodation
determinations are typically resolved as questions of fact). Nevertheless,
we have not expressly considered whether a reasonable accommodation is
a question of law or fact when the accommodation at issue is based on the
parties’ stipulated facts.
While at least one federal appellate court has suggested that a
reasonable accommodation determination involving stipulated facts
presents a question of law because the “matter involves an application of
the law to the undisputed factual determinations,” Arneson v. Heckler,
879 F.2d 393, 397 (8th Cir. 1989), there are both factual and legal issues
that we must consider in determining whether a landlord has made a
reasonable accommodation because we must examine whether the
stipulated facts satisfy the legal standard. See Pullman-Standard v. Swint,
456 U.S. 273, 289 n.19, 102 S. Ct. 1781, 1790 n.19 (1982) (declaring
“questions in which . . . the issue is whether the facts satisfy the statutory
standard” are mixed questions of law and fact). Here, we are reviewing the
parties’ stipulated facts, the district court’s factual findings concerning the
landlord’s efforts to accommodate both tenants’ needs, and the district
court’s conclusion of law that those efforts were sufficient to justify
denying the disabled tenant’s ESA request. Accordingly, the issue of
whether the accommodation in this case was reasonable is a mixed
question of law and fact. As such, we are bound by the district court’s
factual findings so long as they are supported by substantial evidence,
De Stefano, 879 N.W.2d at 164, but our review of the district court’s legal
conclusion involves a question of law that we review for the correction of
errors at law. See Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445
(Iowa 2016).
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III. Analysis.
A. The Issues Before Us. This is an action for breach of the lease
and breach of the implied covenant of quiet enjoyment. The small claims
court found no breaches occurred because the ESA was a reasonable
accommodation. On appeal to the district court, the court came to the
same result on a different rationale. It concluded that it would have been
appropriate to deny Clark’s ESA given its impact on Cohen but that
2800-1 LLC acted in good faith and the law was uncertain. Given these
circumstances, the district court decided that Cohen’s claim should be
dismissed. This brings us to the present appeal.
Appellant Cohen argues that Clark’s ESA was not a reasonable
accommodation under the circumstances and that the uncertain state of
the law does not relieve 2800-1 LLC from liability for breach of her lease
and breach of her covenant of quiet enjoyment. There are two appellees
in this case—2800-1 LLC and Clark. Appellee 2800-1 LLC argues three
points: (1) Clark’s ESA was a reasonable accommodation under existing
law, (2) the law should be changed, and (3) the landlord in any event
should be exonerated under the reasoning of the district court because it
followed existing law as provided to it by ICRC staff. Appellee Clark argues
only one point: the ESA was a reasonable accommodation.
Thus, two issues are clearly before this court: (1) whether the ESA
was a reasonable accommodation and (2) whether the landlord had a good-
faith defense because it followed telephonic ICRC staff advice. Both
appellees presented vigorous written and oral advocacy in support of their
respective grounds for affirmance. The public can verify this by examining
the respective briefs filed by the appellees and watching the oral argument,
which are all available online. There is no rule of appellate procedure that
grounds for affirmance have to be argued by all appellees in order to be
11
considered. No one has suggested before today that both issues are not
properly before this court.
B. Reasonable Accommodation. This is a case of first impression
that requires us to decide whether 2800-1 LLC was reasonable in
accommodating Clark’s ESA request by waiving its no-pets provision to
allow for Clark’s ESA on the premises even though doing so adversely
affected Cohen’s health. 2800-1 LLC accepted liability for breach of the
express no-pets provision, but it maintains “it had no choice but to allow
the [ESA] into the building and also try to accommodate Cohen’s allergies”
after consulting with the ICRC about the issue. Clark contends 2800-1
LLC’s waiver of the no-pets provision and other actions constitute a
reasonable accommodation while Cohen argues these actions were not
reasonable given the burdens they imposed on her ability to enjoy living in
her apartment. Like the lower courts in this case, all of the parties
emphasize to us the problematic uncertainty of the law governing
reasonable accommodations for an ESA when the ESA causes a direct
threat to another tenant’s health and ask for our guidance.
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. See Renda v. Iowa Civil
Rights Comm’n, 784 N.W.2d 8, 15–17 (Iowa 2010).4 Some federal law, such
as the Americans with Disabilities Act (ADA), treats ESAs differently from
service animals and requires state and local programs to accommodate
4There is no allegation in this case that the apartment building is covered by the
FHA, which is limited to federally subsidized housing. Only the ICRA has been raised as
a defense. Thus, the FHA is not at issue in this case, and any arguments about our
violating “the letter” or “the spirit” or the “the public policy” of the FHA are off the mark.
The only relevance of the FHA here is as a persuasive model in interpreting the ICRA.
12
service animals, but not ESAs. See 28 C.F.R. §§ 35.104, 36.104 (2019).
The ICRA and the FHA distinguish between service animals, which require
specific training, and ESAs, while recognizing the validity of both.5 See
Iowa Code § 216.8B(1)(a)–(b) (2020); U.S. Dep’t of Hous. & Urban Dev.,
FHEO-2020-01, Assessing a Person’s Request to Have an Animal as a
Reasonable Accommodation Under the Fair Housing Act 5–7 (Jan. 28, 2020)
[hereinafter HUD FHEO-2020-01 Notice], https://www.hud.gov/sites/
dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
[https://perma.cc/CC29-BCHY]; see also U.S. Dep’t of Hous. & Urban
Dev., FHEO-2013-01, Service Animals and Assistance Animals for People
with Disabilities in Housing and HUD-Funded Programs 2 n.4 (Apr. 25, 2013),
https://archives.hud.gov/news/2013/servanimals_ntcfheo2013-01.pdf
[https://perma.cc/AKA3-2425].
Under Iowa Code section 216.8A(3)(b) (2017) of the ICRA, 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.
Reading on, Iowa Code section 216.8A(3)(c)(2) states, “a refusal to make
reasonable accommodations in rules, policies, practices, or services, when
the accommodations are necessary to afford the person equal opportunity
to use and enjoy a dwelling” constitutes unlawful discrimination. The
statute also provides landlords with a safe harbor in refusing a tenant’s
requested accommodation if the tenancy “would constitute a direct threat
to the health or safety of other persons or . . . would result in substantial
5In 2019, 2019 Iowa Acts chapter 65 was enacted into law. In relevant part, this
legislation clarifies that ESAs can be reasonable accommodations. 2019 Iowa Acts ch. 65,
§ 2 (codified at Iowa Code § 216.8B (2020)). It also criminalized various acts related to
an ESA or service animal, including knowingly denying or interfering with the right of a
person to have such an accommodation and intentionally misrepresenting an animal as
a service animal or service-animal-in-training. Id. § 5 (codified at Iowa Code § 216C.11
(2020)). While these provisions do not apply to this case, they also would not have
affected our analysis in this opinion.
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physical damage to the property of others.” Id. § 216.8A(3)(e) (emphasis
added).
Two situations should be distinguished: (1) where the tenancy per
se allegedly constitutes a direct threat and (2) where the accommodation
requested by the tenant allegedly constitutes a direct threat. In the second
situation, which is what we have here, the direct-threat analysis and the
reasonable accommodation analysis are simply two sides of the same
coin.6
Under state and federal law, the landlord should generally grant a
reasonable accommodation request for an ESA if the person requesting
the accommodation has a disability and a disability-related need for the
ESA. See Iowa Code §§ 216.8B–.8C (2020); HUD FHEO-2020-01 Notice at
6–12; see also Iowa Code § 216.8A(2) (2017). However, like the ICRA, the
FHA includes situations in which the landlord need not grant a reasonable
accommodation request. As the United States Department of Housing and
Urban Development’s guidelines on the FHA explain,
A housing provider may, therefore, refuse a reasonable
accommodation for an assistance animal if the specific animal
poses a direct threat that cannot be eliminated or reduced to
an acceptable level through actions the individual takes to
maintain or control the animal (e.g., keeping the animal in a
secure enclosure).
6Anexample of the first situation would be Arnold Murray Construction, LLC v.
Hicks, where a tenant who was disabled due to a brain injury repeatedly engaged in
abusive and threatening behavior toward other tenants. 621 N.W.2d 171, 173
(S.D. 2001). There, no reasonable accommodation would have eliminated the tenant’s
direct threat. Id. at 176. In this case, however, any potential direct threat arises only
from the accommodation. Therefore, the two legal issues of reasonable accommodation
and direct threat merge into one another. The value of considering “direct threat” here is
simply to help identify accommodations that would not be “reasonable.”
Another example of the first situation would be Hunt v. Aimco Properties, L.P.,
which involved a tenant who was allegedly aggressive, confrontational, harassing,
belligerent, and threatening. 814 F.3d 1213, 1219 (11th Cir. 2016). The court indicated
that direct threat in those circumstances would be an affirmative defense of the landlord.
Id. at 1225. Again, that makes sense, because direct threat is being played as a trump
card that sidesteps any need to address reasonable accommodation. Not so here.
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HUD FHEO-2020-01 Notice at 13–14. Thus, both state and federal law
allow for the consideration of the accommodation’s effects on third parties
in the reasonable accommodation determination, though neither explains
how to consider these effects in practice.
Here, all parties agree that Clark has a psychological disability that
substantially limits one or more major life activities and that a landlord
must generally make reasonable accommodations for persons like Clark
with disabilities under state and federal law. They also agree that Cohen
suffers from allergies to animals, and Clark’s dog caused her to have
allergic attacks. Nevertheless, they differ in their views as to how the
landlord should have handled Clark’s request for a reasonable
accommodation given the direct threat his ESA posed to Cohen’s health.
While sympathetic to Cohen’s allergies, Clark contends the balance
should weigh heavily in favor of approving ESA accommodation requests
despite the ill effects of the ESA on other tenants. He also argues that the
accommodation in this case was reasonable because 2800-1 LLC did all it
could to mitigate Cohen’s allergic reactions to the ESA without incurring
an undue financial burden. Under Cohen’s balancing of the
circumstances, she argues 2800-1 LLC should have rejected Clark’s
request for an ESA because of the direct threat the ESA presented to her
health and the substantial hardship the ESA’s presence caused her on a
daily basis. She also notes 2800-1 LLC’s accommodation in this case was
not reasonable because it could have offered Clark a unit in another
building that already allowed pets, as the leasing manager testified that
2800-1 LLC had vacant units available in other buildings that allowed
pets. Alternatively, Cohen presents a priority-in-time test analogous to
our nuisance law in which the tenant who signed the lease first has priority
15
over the tenant who signed the lease second, moved into the building, then
sought to change the lease after signing it.
Meanwhile, 2800-1 LLC reiterates that its waiver of the no-pets
provision to allow Clark’s ESA on the premises was a reasonable
accommodation that it had no choice but to grant and asks us to provide
clear guidance on how to resolve these situations going forward.
2800-1 LLC stresses the problems associated with both tenants’ attempts
to establish a balancing test in cases like this because every landlord is
different and “a balancing test leaves landlords and tenants without real
guidance as to how to act.” As 2800-1 LLC opined, “[I]t couldn’t act
without denying or interfering with the rights of one of the two tenants.”
Though it disagrees with Cohen’s balancing test proposal, 2800-1 LLC did
argue for a similar bright-line priority-in-time test before the district court
in which “an [ESA] is not a reasonable accommodation where another
tenant in the building provides credible evidence that they are allergic to
the sort of animal proposed.”
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.
There is no law in Iowa or any other jurisdiction that clearly
establishes how landlords should handle reasonable accommodation
questions with ESAs. Generally speaking, determining whether a
situation presents a reasonable accommodation involves “a highly fact-
16
specific inquiry and requires balancing the needs of both parties.”
Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 752
(7th Cir. 2006) (en banc) (quoting Oconomowoc Residential Programs v.
City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)); see also Hollis v.
Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541–42 (6th Cir. 2014).
Both Cohen and Clark have a right to the enjoyment of their
apartment premises. The right to physical well-being does not trump the
right to mental well-being and vice versa. We hold that other tenants’
rights are properly considered in the balancing of needs in the reasonable
accommodation analysis. See Groner v. Golden Gate Gardens Apartments,
250 F.3d 1039, 1046 (6th Cir. 2001) (holding that a landlord’s contractual
duties to other tenants were a permissible consideration in its reasonable
accommodation analysis concerning a disabled tenant). Where 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. As the well-known maxim goes, “first in time shall be first in
right.” Inter-Ocean Reins. v. Dickey, 222 Iowa 995, 998, 270 N.W. 29, 30
(1936). Nevertheless, we emphasize that priority in time is but one
consideration of many in this balancing test rather than the dispositive
factor in concluding whether an accommodation was reasonable.
This priority-in-time consideration is analogous to the one used in
seniority systems under the ADA, as the United States Supreme Court has
held that it is not a reasonable accommodation for an employee with a
disability to leapfrog a more senior employee’s right to a position under a
bona fide seniority plan. US Airways, Inc. v. Barnett, 535 U.S. 391,
405–06, 122 S. Ct. 1516, 1525 (2002). Other courts have similarly held
that an employer’s obligation to provide reasonable accommodations to
disabled employees does not require the employer “to provide an
17
accommodation that is inconsistent with the contractual rights of other
workers.” Fiumara v. President & Fellows of Harvard Coll., 526 F. Supp. 2d
150, 157 (D. Mass. 2007); see also Lucas v. W.W. Grainger, Inc., 257 F.3d
1249, 1256 (11th Cir. 2001) (holding an employer need not “bump another
employee from a position in order to accommodate a disabled employee”);
Laurin v. Providence Hosp., 150 F.3d 52, 60 (1st Cir. 1998) (finding it was
not a reasonable accommodation under the ADA to excuse the plaintiff, a
disabled nurse, from her shift rotation when the collective bargaining
agreement only waived the shift rotation requirement for nurses at a
certain seniority level). Generally, when an employer cannot satisfy both
employees, and a seniority system is in place, the employee who has been
there longer prevails over the less senior employee requesting a disability
accommodation. See US Airways, Inc., 535 U.S. at 405–06, 122 S. Ct. at
1525.
The Supreme Court’s decision did not turn on the employer being
contractually obligated to honor the seniority system. Indeed, it was
observed that the employer had the unilateral right to change the seniority
system at any time and it was “not intended to be a contract.” Id. at 410,
122 S. Ct. at 1527 (O’Connor, J., concurring); see also id. at 423, 122
S. Ct. at 1534 (Souter, J., dissenting). It was enough for the Supreme
Court majority that “expectations” of other employees would be
undermined. Id. at 404 (majority opinion). Similarly, here, we believe a
tenant who cannot tolerate the presence of dogs or cats for medical reasons
and who rents an apartment in a pet-free building with a no-pets policy
has a reasonable expectation that this circumstance will continue.
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
18
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. Cohen’s acknowledgement in the
contract that “[r]easonable accommodations [are] accepted” simply states
that the landlord will follow the law, something the landlord is obligated to
do anyway.
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. If their positions were reversed, and Clark had
signed the lease first and subsequently sought a waiver of the no-pets
provision of the lease as a reasonable accommodation for his ESA after
both parties moved into their apartments, he might be the one advocating
for us to consider his priority in time.
Our holding today aligns with those of other courts that have
rejected requested changes to a residential complex’s contract when those
changes interfere with the rights of third parties. See, e.g., Davis v. Echo
Valley Condo. Ass’n, 945 F.3d 483, 492 (6th Cir. 2019) (holding a tenant’s
request to ban smoking in the condominium complex where she resided
to ease her asthma symptoms was not a reasonable accommodation
because the smoking ban fundamentally altered the complex’s smoking
policy that “would intrude on the rights of third parties”), petition for cert.
filed, No. 19–1249 (U.S. Apr. 27, 2020). For example, the United States
Court of Appeals for the Sixth Circuit rejected a tenant’s request to force
his neighbor out of the apartment complex in violation of the neighbor’s
lease when the neighbor had issues with the tenant’s mental-illness-
induced screaming and door slamming at all hours of the night. Groner,
250 F.3d at 1046–47. Likewise, in the employment context, the United
19
States District Court for the Eastern District of Virginia held that an
employer did not engage in disability discrimination by refusing to allow
the plaintiff to bring her emotional support dog to work in part due to her
coworkers’ dog allergies. Maubach v. City of Fairfax, No. 1:17–cv–921,
2018 WL 2018552, at *6 (E.D. Va. Apr. 30, 2018); see also Roe v.
Providence Health Sys.-Or., 655 F. Supp. 2d 1164, 1167–68 (D. Or. 2009)
(concluding a hospital did not unlawfully discriminate against the
defendant in violation of the ADA when it denied a patient the use of her
service dog due to the health risks, including allergies, that the dog created
for others in the hospital); Crossroads Apartments Assocs. v. LeBoo, 578
N.Y.S.2d 1004, 1007 (City Ct. 1991) (finding whether an emotional support
cat was a reasonable accommodation based on, among other things, the
property manager’s affidavit that the cat “would create health problems for
other tenants” to be an issue of fact).
Further, the Fourth Circuit Court of Appeals has held that the
potential for personal injury to third parties is a relevant factor in
determining whether a person or entity violated the federal fair housing
law by rejecting a reasonable accommodation request. Scoggins v. Lee’s
Crossing Homeowners Ass’n, 718 F.3d 262, 272–73 (4th Cir. 2013). In the
workers compensation context, we have previously concluded that an
allergic reaction can constitute an “injury.” St. Luke’s Hosp. v. Gray, 604
N.W.2d 646, 652 (Iowa 2000). Thus, the potential allergic reactions of
other tenants to an ESA are a relevant factor in determining whether to
grant a tenant’s accommodation request for the ESA. Ultimately, the
rights of third parties “[do] not have to be sacrificed on the altar of
reasonable accommodation.” Davis, 945 F.3d at 492 (alteration in original)
(quoting Groner, 250 F.3d at 1046).
20
We reject Clark’s argument that considering priority in time “is
fraught with potential abuses” because
[l]andlords, hoping to keep their buildings animal free, could
easily find a tenant who objected to an animal in the building
and frame it as ‘credible reason’ for denying another tenant’s
emotional support animal or as an excuse not to search for
other accommodations to less[e]n the effects on other tenants.
This is not a situation in which Cohen simply objected to the ESA’s
presence. Nor would a tenant’s objection to an ESA alone be sufficient to
deny a tenant’s valid request for an ESA accommodation. Landlords need
to explore the ability to grant the accommodation request in good faith
before rejecting it. See Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1125
(D.C. 2005) (“[T]he landlord must attempt accommodation at least by
opening a dialogue with the tenant on the requested accommodation and
thus explore accommodation in good faith before saying ‘no.’ ”).
When the leasing manager contacted the residents about Clark’s
ESA request, Cohen responded by detailing her allergies and symptoms to
cats and dogs. The severity of her allergies was medically documented,
and she even went to an allergist to be retested when her symptoms started
to increase after Clark’s ESA moved into the building. The record shows
it was easier for the leasing manager to have his own dog certified as an
ESA without medical documentation in a matter of minutes online than it
was for Cohen to go through allergy testing and receive medical
documentation of her pet allergies. In any event, landlords should only
consider this priority-in-time factor in its balancing when the tenant
objecting to the accommodation has priority in time and can provide
medical documentation supporting the tenant’s objection, as Cohen did in
this case.
21
Our holding results from the fact-specific balancing the law requires
us to undertake in reasonable accommodation determinations. We are not
holding that a visually disabled person with a service dog should be denied
access to a “no pets” apartment building whenever a tenant with dog
allergies is already living in that building and would suffer allergy attacks
from the presence of the dog. That situation is not before us today. That
both service animals and ESAs are types of reasonable accommodations
under both the ICRA and the FHA does not mean, however, that the
balancing test we describe in this opinion will necessarily end up with the
same result when the animal is a service animal. For example, once a
service animal has learned an apartment and an apartment building, there
is a burden on requiring the tenant and the service animal to relocate to
another apartment or building that might not exist for an ESA.
Also, in this case, the tenant asked to bring the ESA onto the
premises approximately one month after his tenancy began. It appears
the tenant could have been provided an apartment in a different building
that did not have a “no pets” policy or that already had one or more ESAs.7
Indeed, if the tenant had broached the ESA with the landlord before
moving in, the parties might have adopted this solution and this litigation
might not have arisen.
Notably, other courts have indicated that it is a reasonable
accommodation for a landlord to offer a tenant an apartment in another
building when the tenant’s need for an accommodation conflicts with the
rights of another tenant. See Groner, 250 F.3d at 1046 (considering
tenant’s proposed accommodation of moving to another apartment within
7Jeffrey Clark, the leasing and property manager for 2800-1 LLC, testified to
having received thirty-two ESA requests in the past year, all of which were granted.
Jeffrey also testified that he had apartments in other buildings available that would allow
pets but had been advised by the ICRC staff that having a tenant move to a different
apartment building did not constitute a reasonable accommodation.
22
the same complex but ultimately rejecting this accommodation because all
apartments in the complex had the same configuration that caused
tenant’s issue and would not alleviate the issue); Logan v. Matveevskii,
57 F. Supp. 3d 234, 263 (S.D.N.Y. 2014) (“In his submissions, Plaintiff did
not provide any reason why he rejected THA’s offers of the apartment at 4
Union Place. However, in his deposition, Plaintiff cited two reasons for
these rejections. The first was his ‘comfort level’ with 31 Midland Place,
‘the building that [he had] been in for close to 30 years.’ While Plaintiff’s
attachment to his building is understandable, it has no demonstrated
relationship to his handicap or disability, and as such, THA had no
obligation to take it into account in attempting to accommodate him.”
(alteration in original) (citation omitted)).
C. The Landlord’s Good-Faith Defense. Finally, we need to
consider 2800-1 LLC’s argument that even if the ESA was not a reasonable
accommodation, it should have a good-faith defense to a breach of contract
claim. This was essentially the view of the district court, which dismissed
Cohen’s claim after noting that the Landlord
did consult with the Iowa Civil Rights Commission and acted
on their advice. . . . Landlord did not believe [it] had the option
to decline the request and [it] made every effort to mitigate the
effect of that result on Ms. Cohen.
Although we are sympathetic to the landlord’s predicament, Cohen
observes correctly that the district court cited no supporting law for its
ruling. Nor does the landlord cite any law in defending the district court’s
ruling before our court. Generally, contractual liability is strict liability.
A breach is a breach, whether committed in good faith or not. See
Restatement (Second) of Contracts § 235(2), at 211 (Am. Law Inst. 1981)
(“When performance of a duty under a contract is due any non-
performance is a breach.”); id. § 235 cmt. b, at 212 (“When performance is
23
due, . . . anything short of full performance is a breach, even if the party
who does not fully perform was not at fault . . . .”). The situation is typically
binary: either (1) a party breached the contract, giving rise to an action for
damages and discharging the other party’s performance if the breach was
material or (2) the party didn’t breach, in which case the other party
remains bound to the contract and has no claim for damages. So, under
contract law, the alternatives are to find that Cohen is bound to continue
leasing her apartment and has no remedy or to find that she can claim
damages against 2800-1 LLC because it breached its “no pets” covenant
as to her.
Also, no one argues that the informal telephonic advice 2800-1 LLC
received from the ICRC is binding as to what the law is. See Arthur Earl
Bonfield, The Iowa Administrative Procedure Act: Background,
Construction, Applicability, Public Access to Agency Law, the Rulemaking
Process, 60 Iowa L. Rev. 731, 810 (1975) (“Informal advice from an
agency—an advisory opinion—is not normally deemed binding upon an
agency because of its very lack of formality and the unstructured nature
of that advice. If informal advice given by an employee of an agency were
normally deemed binding upon it, no end of injury to the public interest
would be possible.”). In division III.B, we have determined what the law
required the landlord to do in this case. Hence, this is not a case where
compliance with a government regulation or order would relieve 2800-1
LLC from performance. See Restatement (Second) of Contracts § 264
(explaining that nonperformance of a duty is “a basic assumption on which
the contract was made” when “the performance of a duty is made
impracticable by having to comply with a domestic or foreign governmental
regulation or order”).
24
Under contract law, given the terms of this lease, Cohen must
prevail. The landlord breached its promise to her that her apartment
would have no pets other than “reasonable accommodations,” and we have
found that Clark’s ESA was not a reasonable accommodation. The issue
here is whether an ESA that is not a reasonable accommodation breaches
a “no pets” clause in a lease. Clearly, it does. Additionally, Cohen’s
suffering from her allergies constitutes a breach of her covenant of quiet
enjoyment.
We recognize that Cohen’s lease is a residential lease governed by
Iowa Code chapter 562A, the Iowa Uniform Residential Landlord Tenant
Act (IURLTA).
Iowa Code section 562A.21(2) of the IURLTA states,
Except as provided in this chapter, the tenant may recover
damages and obtain injunctive relief for any noncompliance
by the landlord with the rental agreement or section 562A.15
unless the landlord demonstrates affirmatively that the
landlord has exercised due diligence and effort to remedy any
noncompliance, and that any failure by the landlord to remedy
any noncompliance was due to circumstances reasonably
beyond the control of the landlord.
Thus, the IURLTA gives the landlord a defense to a breach of lease claim if
the landlord “exercised due diligence and effort to remedy any
noncompliance” and “any failure by the landlord to remedy any
noncompliance was due to circumstances beyond the control of the
landlord.” Id. But here the landlord did not raise section 562A.21, and
only if it had would we need to decide whether the landlord had met the
prerequisites set forth in subsection (2) of that section. We must conclude
therefore that the landlord waived this defense and Cohen must prevail on
her claims.
In summary, substantial evidence supports the district court’s
factual finding that 2800-1 LLC’s efforts justified denying Clark’s ESA in
25
the apartment building given the inability to accommodate Cohen’s
allergies with the ESA’s presence. 2800-1 LLC’s waiver of the no-pets
provision in Clark’s lease and its attempts to accommodate both Clark and
Cohen while they lived in the same building was not a reasonable
accommodation. This is especially so when 2800-1 LLC had available
apartments for Clark in other buildings that already allowed pets and
considering Cohen’s priority in time. 2800-1 LLC should have denied
Clark’s request to accommodate an ESA in the same apartment building
as Cohen. The district court, having reached this same conclusion, erred
in dismissing Cohen’s claims for breach of contract. We reverse and
remand for an award of Cohen’s requested damages of one month’s rent.
IV. Conclusion.
For the aforementioned reasons, we reverse the district court’s
dismissal of Cohen’s case and remand to the district court.
REVERSED AND REMANDED.
Waterman, Mansfield, and McDermott, JJ., join this opinion. Appel,
J., files a dissenting opinion. McDonald, J., files a separate dissenting
opinion in which Oxley, J., joins.
26
#18–2173, Cohen v. Clark
APPEL, Justice (dissenting).
In this case, Cohen brings common law contract and quiet
enjoyment claims against landlord 2800-1 LLC arising from the landlord’s
decision to accommodate Clark by allowing him to have a support animal
on the premises, notwithstanding a provision in the lease which provided
that no pets were allowed, but added the qualifier that “[r]easonable
accommodations [are] accepted.”8
If the landlord’s action permitting Clark to have the support animal
was a reasonable accommodation under the lease, the landlord prevails.
In determining the meaning of this contractual term, the parties invite us
to look to state and federal antidiscrimination law.
I. Preliminary Issue: Was Discretionary Review Improvidently
Granted?
I fully agree with division II of Justice McDonald’s opinion regarding
the state of the advocacy in this case. In its brief, the landlord states that
under the United States Department of Housing & Urban Development,
FHEO-2013-01, Service Animals and Assistance Animals for People with
Disabilities in Housing and HUD-Funded Programs 3 (Apr. 25, 2013),
https://archives.hud.gov/news/2013/servanimals_ntcfheo2013-01.pdf
[https://perma.cc/AKA3-2425], and Bronk v. Ineichen, 54 F.3d 425, 431
(7th Cir. 1995), an emotional support animal (ESA) is “essentially, a per se
accommodation.” The landlord further states, “Under the framework the
8This is not a case where a third party is being asked to surrender contract rights
in order to accommodate a person with disability. See, e.g., Fiumara v. President &
Fellows of Harvard Coll., 526 F. Supp. 2d 150, 157 (D. Mass. 2007). The question is not
whether reasonable accommodation requires defeat of third-party contract rights. This
case involves the contract right itself. The landlord expressly reserved the ability to
engage in “reasonable accommodation.”
27
Landlord had, Clark’s dog was a reasonable accommodation under the
ICRA.”
Then, however, the landlord somersaults and argues that “[t]he
current rule that animals are essentially per se reasonable
accommodations is clearly wrong.” According to the landlord,
Continuing with such a rule inevitably leaves those persons
who are allergic to certain animals with nowhere to live
without suffering the effects of their allergies, and requires
landlords to incur substantial costs, depending on how well
the owners of the animals care for them and how well-
housetrained those animals are. The costs can far exceed the
maximum deposit of two-months rent a landlord can require
for a single apartment.
Thus, although the landlord complied with “the current rule,” the
landlord, like the plaintiff, advocates abandoning it. According to the
landlord, “landlords who wish to market their buildings and units to
people with allergies and people who don’t want to live with animals should
be able to do so without the requirement that the promises they’ve made
will be broken.”
In other words, the landlord in this case urges us to adopt the
approach favored by the plaintiff, and merely restates “the current rule” in
a conclusory manner. The plaintiff and the landlord are joining forces to
seek to persuade this court to adopt an approach to reasonable
accommodation contrary to the advice received by the landlord from the
Iowa Civil Rights Commission (ICRC).
Has the issue of the proper approach to reasonable accommodation
truly been joined in this case? Or, do we have two friendly parties seeking
to encourage this court to adopt a different framework? Ordinarily, we are
not in the business of providing advisory opinions on issues for which
there is no real adversarial context. See, e.g., Alcala v. Marriott Int’l, Inc.,
880 N.W.2d 699, 711–12 (Iowa 2016) (finding the issue not decided where
28
no full adversary briefing); State ex rel. Turner v. Midwest Dev. Corp., 210
N.W.2d 525, 525 (Iowa 1973) (“[I]ssues presented in a case on appeal
become moot if an opinion thereon would be of no force or effect as to the
underlying controversy.”). Where an issue is not contested by the parties,
the court’s subsequent holding is not the product of an adversarial
proceeding and is not entitled to stare decisis. See Haskenhoff v.
Homeland Energy Sols., LLC, 897 N.W.2d 553, 614–15 (Iowa 2017) (Appel,
J., concurring specially).
The landlord’s lack of interest in defending its actions is
demonstrated by the contrast between the landlord’s brief and Justice
McDonald’s opinion. Justice McDonald raises a host of issues, in depth,
but the landlord did not argue them. Indeed, the landlord either did not
mention them or sought to abandon them. It seems that the landlord
largely sides with the tenant, Cohen, on the basic issue underlying this
case but suggests that it was relying upon the advice of the ICRC in
responding to Cohen.
There are additional important issues that the landlord does not
raise because of the landlord’s desire to have the court adopt the approach
of Cohen, its purported adversary. For example, there is a potential
question of whether the emotional support animal is a “pet” under the
contract. An argument may be made that an ESA should not be
considered a “pet” under the lease because such an animal is not a pet
under the Federal Fair Housing Act. See Baird v. 1600 Church Rd. Condo.
Ass’n, No. CV 17–4792, 2017 WL 5570333, at *5 (E.D. Pa. Nov. 17, 2017)
(finding that if a plaintiff meets the burden for a service animal or ESA,
pursuant to HUD guidance, landlords must make allowance for exception
to a no-pets policy); U.S. Dep’t of Hous. & Urban Dev., FHEO-2020-01,
Assessing a Person’s Request to Have an Animal as a Reasonable
29
Accommodation Under the Fair Housing Act 3 (Jan. 28, 2020),
https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-
28-2020.pdf [https://perma.cc/CC29-BCHY] (“Assistance animals are not
pets.”). But this argument would cut against the landlord’s desire that
this court adopt the plaintiff’s approach to reasonable accommodation.
Even though the court has found a violation of the no-pets policy because
the landlord’s action was not an accommodation, the court correctly does
not address the question of whether an ESA may be considered a pet under
the FHA, as this question was not raised by any party. As a result, the
issue remains open and is not decided in this case.
The only defense that the landlord really raises in this case on
appeal is near the end of its appellate brief.9 The district court had stated
that “the Court would find that the efforts made by Landlord were
sufficient to justify denying Mr. Clark’s request for reasonable
accommodation or moving to the imperfect solution of asking him to move
to another apartment building.” That looks like a ruling against the
landlord. The district court, however, noted that the law “was not clear”
at the time of events and that the landlord “did consult with the Iowa Civil
Rights Commission and acted on their advice.” The district court further
stated that “under the law as it was, Landlord did not believe [it] had the
option to decline the request and [it] made every effort to mitigate the effect
of that result on Ms. Cohen.” As a result, the district court held that “[t]he
claims against both Defendants should be dismissed.”
9Before the small claims court, the landlord’s attorney did not provide opening or
closing argument. The landlord’s attorney did call Jeffrey Clark (no relationship to
plaintiff), a manager of the apartment complex. Through Jeffrey Clark’s testimony, the
landlord attempted to show pets imposed substantial costs on landlords. Further, the
landlord offered evidence to show that requests for ESAs were increasing in recent years.
Finally, the landlord showed that Jeffrey Clark called the ICRC and received the advice of
ICRC staff on the issue.
30
The landlord on appeal seeks affirmance of the district court’s
opinion on the ground expressed by the district court. According to the
landlord,
Though the Landlord admitted it had breached the “no-pets”
provision of Cohen’s lease, the District Court found that the
breach was acceptable because of the state of the law
requiring the Landlord to accommodate Clark’s animal. The
Court’s dismissal should be affirmed.
Plaintiff Cohen contests the rationale that the breach was essentially
excused because of the state of the law and the landlord’s reliance on the
advice of the ICRC. The excuse issue is thus presented in an adversarial
setting and is properly before the court. But it is the only issue contested
by the landlord and Cohen on this appeal.
Further, there are additional features that suggest this might not be
the best case to decide important issues. Although Cohen claims on
appeal that the ESA created a direct and substantial threat to her health
and safety, she remained in her apartment throughout the term of her
lease and then sued the landlord for only one month’s back rent, a rather
modest remedy. Given the briefing in this case, it seems to me the landlord
would be happy to pay Cohen one month’s rent to get a ruling declaring
that the landlord has no obligation to accommodate persons who have
demonstrated a need for an ESA. The landlord seeks to improve its overall
position in this litigation through vindication of the substantive legal
position of Cohen, the landlord’s purported adversary.
It is true, however, that Clark presents a more robust brief on a
number of issues than does the landlord. But Cohen waived her claim
against Clark. Because Cohen no longer has a claim against Clark, Clark’s
arguments cannot be imputed to the landlord in this case.
31
In addition to the limited development of legal issues, the record in
this case leaves a lot to be desired. A two-page stipulation contains many
vague statements, including, for instance, that Cohen suffered from allergy
attacks, but does not describe them. The transcript at the hearing is only
slightly more than a hundred pages and contains many loose ends. Cohen
testified she feared that her dog allergies would progressively become as
severe as her allergies to cats because of the presence of Clark’s ESA, but
we have no expert testimony on whether this concern was scientifically
supported or was simply Cohen’s fear. Among other loose ends, as will be
described below, we do not know whether a reshuffling of apartment
locations would have successfully accommodated both Clark and Cohen.
And, there is a further complication in the posture of this case. The
Iowa legislature recently enacted Iowa Code section 216.8B. 2019 Iowa
Acts ch. 65, § 2 (codified at Iowa Code § 216.8B (2020)). Iowa Code section
216.8B(2) (2020) provides that “[a] landlord shall waive lease restrictions
and additional payments normally required for pets on the keeping of
animals for the assistance animal or service animal of a person with a
disability.” The waiver requirement of Iowa Code section 216.8B(2) is
expressed in mandatory terms and does not contain any express
qualifications. The new statute further provides for criminal liability for a
person “who knowingly denies or interferes with the right of a person with
a disability under this section.” Iowa Code § 216.8B(4).
The parties agree that these new statutory provisions do not apply
to this case. A fair case can be made that the new statute establishes a
per se approach because it contains an unqualified requirement for a
landlord to waive lease restrictions for ESAs. Has the majority laid the
foundation for invalidating the Iowa statute on the ground that federal
antidiscrimination law rejects a per se rule? Should we not await a case
32
where the question of the validity of the state statute is directly raised and
fully developed by the parties?
In my view, because of the posture of this case and the limited
advocacy and record in this case, I would dismiss the discretionary appeal
as improvidently granted. The case is characterized as an “issue of first
impression,” and so it is. It also may provide the analytic basis to
invalidate a provision of Iowa law. We should have the best advocacy
before we decide such important questions. The limited nature of the
advocacy does not provide a good vehicle for the court to decide the
fundamental issues before it.
II. Overview of Issues.
A. Reasonable Accommodation Under the Contract.
1. Introduction. As indicated above, the landlord did not analyze in
its appellate brief what a reasonable accommodation is under applicable
law. The gist of the landlord’s brief in this case was that the
accommodation made for the ESA was not reasonable.
Ordinarily, determination of the question of reasonable
accommodation involves two elements: reasonableness and necessity.
Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir.
2014). In this case, the parties stipulated that Clark has an impairment
that limits one or more major life activities and that the ESA is necessary
to afford him equal opportunity to use and enjoy his tenancy. But the
parties did not stipulate on the issue of reasonableness. An
accommodation is reasonable if it is both efficacious and proportional to
the costs to implement it. See Oconomowoc Residential Programs v. City
of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002).
33
2. Exception to a no-pets policy for an ESA may be a reasonable
accommodation that does not fundamentally change the landlord–tenant
relationship. Although not argued by the landlord, there is ample authority
for the proposition that the use of an ESA in a tenant’s housing may be a
reasonable accommodation. See, e.g., Revock v. Cowpet Bay W. Condo.
Ass’n, 853 F.3d 96, 110 (3d Cir. 2017); Bronk, 54 F.3d at 429; Warren v.
Delvista Towers Condo. Ass’n, 49 F. Supp. 3d 1082, 1087 (S.D. Fla. 2014).
There may be a question, however, in some cases as to whether the
granting of an exception to a landlord’s general no-pets policy works a
fundamental change in the rental agreement and thus is not a reasonable
accommodation. Where a landlord, pursuant to a contract that permits
reasonable accommodations to a no-pet rule, allows an ESA
accommodation, I do not think the landlord’s effort to apply the reasonable
accommodation exception amounts to a fundamental change of the nature
of the complex. See Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483, 492
(6th Cir. 2019) (finding that a one-off adjustment to a policy is not a
complete change), petition for cert. filed, No. 19–1249 (U.S. Apr. 27, 2020).
3. Consideration of third-party health as part of reasonable
accommodation analysis. In this case, a critical potential issue is to what
extent the interests of a third party, Cohen, may be considered in
determining whether the accommodation for Clark is reasonable. Is the
impact on other tenants properly considered in making that
determination? Or alternatively, is the question of reasonable
accommodation merely a balancing of rights between the landlord and the
tenant, with the landlord having discretion to refuse a reasonable
accommodation only when they choose to assert the affirmative defense of
a direct and substantial threat to the health and safety of third parties?
The landlord did not address this issue in its briefing.
34
The majority opinion states that “both state and federal law allow for
the consideration of the accommodation’s effects on third parties in the
reasonable accommodation determination.” That is certainly true where
the landlord invokes the affirmative defense of direct and substantial
threat to the health and safety of a third party through specific refusal of
an otherwise reasonable accommodation. See Talley v. Lane, 13 F.3d
1031, 1034 (7th Cir. 1994).
But that did not happen in this case. The direct and substantial
threat provision is a safe harbor available to a landlord in which no
balancing occurs, unlike the reasonable accommodation question. It is a
categorical refuge available where accommodations have been denied.
Here, however, the question is whether an accommodation that has
been granted was reasonable and therefore did not amount to a breach of
contract or breach of quiet enjoyment. The question becomes whether in
making the reasonable accommodation determination, the landlord is
required to consider the health impact on third parties or only the impact
on the landlord and the person seeking the reasonable accommodation.
There is little caselaw on this particular issue. There are many cases
approving of waivers of no-pet provisions in a landlord–tenant agreement
as reasonable accommodations, as cited by Justice McDonald. Most of
those cases, however, did not involve health concerns of third parties.
In one case cited by Justice McDonald, the court did at least
tangentially consider whether the health of third parties is to be properly
considered by the landlord in making a reasonable accommodation
determination. In Castellano v. Access Premier Realty, Inc., 181 F. Supp.
3d 798 (E.D. Cal. 2016), the landlord permitted the plaintiff to have a cat
in the apartment. Id. at 802. There were concerns raised about fleas and
the safety of residents, but the district court ruled that no triable issue
35
was present. Id. at 807–08. Any determination on the issue “must be
based on an individualized assessment of the specific animal’s actual
conduct.” Id. at 808. Where the opponents of the accommodation offered
only generalized concerns, summary judgment on the issue was
appropriate. Id. This case, however, does not hold that health
implications to third parties must be considered. A case cited by the
majority indicates that the reasonability determination must consider the
burden that the requested modification would impose on the defendant
and, in parenthesis, “and perhaps on persons or interests whom the
defendant represents.” Hollis, 760 F.3d at 541–42. The term “perhaps” is
not very strong. But in Groner v. Golden Gate Gardens Apartments, 250
F.3d 1039 (6th Cir. 2001), the United States Court of Appeals for the Sixth
Circuit considered the impact of a proposed accommodation on other
tenants. There, Groner, a person with mental disabilities who slammed
doors and screamed, proposed that the complaining tenant be moved to
another apartment within the apartment complex. Id. at 1041–43,
1045–46. The Sixth Circuit rejected that proposal, noting that the impact
on Groner’s new neighboring tenant would be unacceptable. Id. at 1046.
On balance, I think the term “reasonable accommodation” as used
in the lease is open-ended. It is a phrase of inclusion, not exclusion. Thus,
I conclude that when making a determination of reasonable
accommodation, the landlord should consider all relevant interests,
including the potential health on third parties. Such a contractual term
should not be construed to permit the landlord to completely ignore health
concerns of other renters. Even if health considerations are insufficient to
amount to a direct and substantial threat, the landlord should consider
lesser health threats as part of the determination of whether an
accommodation is reasonable. As colorfully noted in Groner, “the
36
[neighbor’s] rights did not have to be sacrificed on the altar of reasonable
accommodation.” Id. at 1046 (alteration in original) (quoting Temple v.
Gunsalus, No. 95–3175, 1996 WL 536710, at *2 (6th Cir. Sept. 20, 1996)).
I am thus inclined to disagree with Justice McDonald’s view that a
request for use of an ESA as an accommodation by a person with a
disability should be considered per se reasonable under the lease. If, by
way of extreme example, Cohen presented evidence that the presence of
Clark’s ESA would cause her life-threatening attacks and the necessity of
periodic EpiPen usage, I would not require evidence of death to conclude
that Clark’s accommodation of an ESA dog was not reasonable. Yet, I do
not think that the presence of a tenant with a pet allergy necessarily means
that a landlord may not accommodate a disabled person in need of an
ESA. In many cases, the marginal allergy interest may be overwhelmed by
the pressing necessity shown by the disabled person.
4. “First in time” as a factor in reasonability analysis. An “under all
the circumstances” application of the concept of reasonable
accommodation is the antithesis of a bright-line rule, or series of bright-
line rules. Some want the law to be only about bright-line rules, but all
bright-line rules are necessarily both overly broad and under inclusive.
Where nuance and precision is considered important, flexible case-by-case
consideration is often preferable. Like the flexible standards in juvenile
and family law, the concept of reasonable accommodation is nuanced,
highly contextual, and case specific. Some may prefer bright-line rules,
but that is not what the lease and antidiscrimination law provide. Nor is
it what the parties included in their contract. In their contract, the parties
did not utilize a bright-line rule. We cannot rewrite the contract to include
one.
37
The majority opinion asserts that the concept of “first in time”
provides the tipping point in this case. I do not think the timing of when
one inks a lease is very important. A clear line can similarly be drawn, or
rule obtained, by applying an alphabetical approach or some kind of
lottery. This is not a race in time, and the fact that a tenant inked up
days, weeks, or months prior to a person who seeks accommodation does
not, by itself, weigh heavily in the analysis. What might be important,
however, is if a landlord rejecting an accommodation could show that other
tenants had substantial reliance interests superior to that of the cotenant
seeking accommodation.
Here, however, Cohen has shown no substantial reliance interest
superior to Clark. Yes, her lease began two months earlier. But as Justice
McDonald persuasively shows, Cohen knew from the get go that the pets
policy was subject to reasonable accommodations. She may not have fully
understood what that meant, but it simply cannot be stated that Cohen
had no knowledge that there was a possibility that the no-pets policy could
be overridden by reasonable accommodations of other tenants. She had
very direct knowledge of that.
Further, this case is not like the collective bargaining cases where
seniority rights under a collective bargaining agreement are overridden by
assertions of reasonable accommodations. See Fiumara v. President &
Fellows of Harvard Coll., 526 F. Supp. 2d 150, 157 (D. Mass. 2007) (finding
that failure to grant injured worker a position in circumvention of seniority
was not disability discrimination through failure to reasonably
accommodate worker); see also Lucas v. W.W. Grainger, Inc., 257 F.3d
1249, 1257 (11th Cir. 2011) (ruling that employer was not required to
“bump” an employee from their current position to accommodate injured
worker). Here, the contract itself provided for reasonable
38
accommodations. There is no conflict at all between reasonable
accommodation under disability law and the terms of Cohen’s contract.
Indeed, Cohen agreed to a contract with a qualified no-pets provision
stating the lease was subject to reasonable accommodations. On this
point, I agree with Justice McDonald.
B. Good-Faith Action in Reliance on Advice from ICRC. Justice
McDonald asserts that the landlord in this case is not liable for damages
because of its good-faith reliance on advice received from the ICRC.
Ordinarily, we do not embrace the concept that a breaching party may rely
on a good-faith escape from contractual liability. In contract law, the party
claiming breach is not required to prove lack of good faith on the part of
the breaching party. See, e.g., Ricardo Solano Jr., Contracts—Implied
Covenant of Good Faith and Fair Dealing—A Party’s Conduct in Performing
and Terminating a Contract May Breach the Implied Covenant of Good Faith
and Fair Dealing Even if the Termination is Pursuant to an Express and
Unambiguous Term in the Contract—Sons of Thunder, Inc. v. Borden, Inc.,
148 N.J. 396, 690 A.2d 575 (1997), 28 Seton Hall L. Rev. 720, 725 (1997)
(“[A] party’s motive for terminating an agreement is irrelevant when
considering whether the party violated the contract’s express terms.”).
Many well-lawyered contracts produce unexpected ambiguities that, when
fully litigated, could reasonably go either way. But that is not a defense to
breach of contract.
But there may be an exception when a party believes it is required
to breach its contract because of a government order or regulation. As
Justice McDonald points out, section 264 of the Restatement (Second) of
Contracts provides that contractual performance may be excused “[i]f the
performance of a duty is made impracticable by having to comply with a
domestic or foreign governmental regulation.” Restatement (Second) of
39
Contracts § 264, at 331 (Am. Law Inst. 1981). That proposition seems
uncontroversial in some contexts. Comment b states, however, that,
It is not necessary that the regulation or order be valid, but a
party who seeks to justify his non-performance . . . must have
observed the duty of good faith and fair dealing imposed by
[section] 205 in attempting, where appropriate, to avoid its
application.
See Directions, Inc. v. New Prince Concrete Constr. Co., 491 A.2d 1347,
1349 (N.J. App. Div. 1985) (quoting Restatement (Second) of Contracts
§ 264 cmt. b, at 333). It has been said that a government policy “need not
be explicitly mandatory to cause impracticability.” Int’l Minerals & Chem.
Corp. v. Llano, Inc., 770 F.2d 879, 887 (10th Cir. 1985). For example, in
Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 980 (5th
Cir. 1976), government jawboning over giving preference to procurements
related to the Vietnam War was held to provide a sufficient excuse.
Here, the landlord engaged in highly appropriate but nevertheless
informal consultation with the ICRC. There is no suggestion that there
was collusion between the ICRC and the landlord. Yet, there was no order
from the ICRC, only advice on how to proceed in this case.
Further, in order to support an excuse for nonperformance, the
difficulty could not have been contemplated by the parties at the time they
made the contract. See In re David’s & Unique Eatery, 82 B.R. 652, 654
(Bankr. D. Mass. 1987) (“The essence of the defense of impracticability is
that the cause for nonperformance must be some extreme or unreasonable
difficulty which could not reasonably be expected to be within the
contemplation of the parties at the time they made their contract.”). Here,
the parties incorporated the term “reasonable accommodation” into their
lease. They knew or should have known of the difficulty of application of
the term and the potential of seeking guidance from government officials
40
responsible for enforcement. The advice given by the ICRC in this case
was not the equivalent of a force majeure by government regulation or
order. Cf. Twombly v. Ass’n of Farmworker Opportunity Programs, 212
F.3d 80, 85 (1st Cir. 2000) (finding excuse due to government regulation
applies to supervening regulation); Stephen G. York, Re: The Impracticality
Doctrine of the U.C.C., 29 Duq. L. Rev. 221, 222 (1991) (finding that courts
deny discharge if a disruptive event was foreseeable at the time of contract
formation). For the above reasons, I would find that the landlord has not
established an excuse for nonperformance.
III. Application of Principles.
As indicated above, I do not believe that an accommodation for an
ESA creates a fundamental change to the business of the landlord, and I
do not think the accommodation sought by Clark could be denied on that
basis. I also reject application of a first-in-time approach in this case. It
seems to me we have to consider whether a landlord has provided a
reasonable accommodation on a case-by-case basis.
Plainly, under the stipulation, Clark has shown he suffers from a
disability and that an ESA would assist him in enjoying equal opportunity
in the rental market. The record further shows that Clark received
considerable benefit from the ESA in the form of significant decreased
reliance on various drugs. The landlord, in its ironic attack on its own
accommodation, is skeptical, perhaps, of ESAs generally. But the record
in this case supports the notion that the ESA accommodation for Clark
was necessary because of his disability and that Clark received substantial
benefit from the ESA.
Conversely, the stipulation provides that Cohen experienced allergy
attacks as a result of Clark’s ESA. There are no facts presented
demonstrating that Cohen’s reaction to the ESA was currently a serious
41
threat to her health. Although Cohen’s allergy to cats was sufficiently
severe enough that she carried an EpiPen to treat herself as necessary,
she was clearly currently less allergic to dogs.
The record established, however, that Clark experienced ongoing
cold-like symptoms that caused her to be sufficiently uncomfortable that
she avoided being in her apartment. She feared that her allergy to dogs,
though much less severe than her allergies to cats, could become
progressively worse. While Cohen’s interest may not have currently given
rise to a direct and substantial threat to her health, it was also not merely
speculative or de minimus as in Castellano.
In my view, the mere existence of a run-of-the-mill allergy to dogs
does not, in itself, ordinarily override an interest like Clark’s in an ESA in
determining whether an accommodation is reasonable. In other words, if
Cohen’s allergy was reasonably manageable and did not have the backdrop
of a severe allergy to cats, Clark’s interest would likely override the interest
of Cohen. But Cohen showed aggravating circumstances of
unmanageability of current symptoms and a risk of development of further
problems. While Cohen’s interest may not have been sufficient to trigger
the safe harbor provision related to direct and substantial threat to health,
it cannot be ignored in considering reasonable accommodations.
But a reasonable landlord, when considering accommodations for a
disabled tenant, must explore all reasonable potential alternatives,
particularly in light of the specific and particularized countervailing
interest of another tenant. If we carefully review the record in this case, it
is clear that the issue of accommodation through offering other similar
units was not well developed.
The majority suggests that “Jeff explained to the ICRC employee over
the phone that 2800-1 LLC had apartments in other buildings available
42
that allowed pets and could accommodate Clark’s request by renting him
a different apartment in a different building.” But the record does not
support these sweeping statements.
The landlord’s representative testified very briefly about discussions
with ICRC staff regarding the potential of offering other units to Clark (or
Cohen). The brief discussion follows in its entirety.
Q. Did you have any discussion with anybody at the
State of Iowa, the human rights department, about whether
you could redirect what apartment tenants live in as a
requirement to accommodate an ESA? A. When you say
“redirect,” what do you mean?
Q. Could you force them to live in a different
apartment? A. Within the complex, you’re saying, if there’s
one available or a different building?
Q. Either, I guess. Did you have any discussion about
that? A. I believe I had spoken with Don Grove [of the Iowa
Civil Rights Commission] about what you could do as far as if
somebody brings in an ESA and so on. Very vague
discussions and no real answer on whether or not we do, but
more leaning towards, no, they’re where they’re at.
Q. Would it be conceivable to designate a certain
portion of your property by isolating with these doors or
making an absolute no-pet policy for any specific building?
Would that be a conceivable option to put persons with
allergies [there]? A. I don’t know if—I don’t know. I don’t
know if that’s an option.
That is all there is. Obviously, the above passage does not establish
whether it would have been possible to relocate Cohen or Clark in another
apartment with similar rent and other characteristics owned by the
landlord. And, later in testimony, the landlord’s representative was simply
asked whether the landlord had buildings that allowed pets and received
an affirmative answer. But there was no indication of where the buildings
were located, whether there were any vacant apartments, and whether the
potential alternate apartments were similar to that occupied by Cohen or
Clark. We just don’t know.
43
In my view, where the landlord is faced with a conflict between a
person who seeks an ESA accommodation and a person who suffers from
serious and unmanageable allergies to animals like Cohen, and the
interests are close to equipoise, the reasonable landlord must explore the
option of providing similar housing in other units owned by the landlord
to either the person seeking an accommodation or the person resisting it.
The record establishes that the landlord had other housing units that
accepted pets, but it is not clear whether such housing was similar to that
occupied by Clark, whether the possibility of relocation was pursued with
either Clark or Cohen, and whether the alternate locations were
acceptable. We do not know whether an accommodation involving moving
Clark or Cohen to different apartments would have provided a reasonable
resolution that would have recognized the interests of both parties.
Because there is no prior Iowa caselaw holding that a landlord must
explore potential relocation options when faced with a conflict between
tenants such as that which arose in this case, I would remand the matter
to the district court for further proceedings. Cf. State v. Hoeck, 843 N.W.2d
67, 71–72 (Iowa 2014) (remanding case where novel issues were raised on
appeal and issues were not fully briefed or factually developed).
IV. Conclusion.
I would dismiss this case on the ground that discretionary review
was improvidently granted. On the merits, I would conclude that
modification of a no-pets rule by a landlord is not an unreasonable
accommodation on the basis that it fundamentally changes the landlord’s
business. I would further conclude that in considering whether an ESA is
a reasonable accommodation, it is permissible to take the health impact
on other tenants into consideration. In making the call between conflicting
interests of tenants, I would reject a protean first-in-time approach
44
involving third parties such as other tenants. I also would reject the notion
that a landlord is excused from potential contractual liability based upon
an informal consultation with the ICRC such as the one that occurred in
this case. I would remand the case for further proceedings on the question
of whether there were other similar apartments available that could have
accommodated the interests of all concerned.
45
#18–2173, Cohen v. Clark
McDONALD, Justice (dissenting).
Federal, state, and municipal fair housing laws protect the rights of
disabled persons to access to housing on a fair and nondiscriminatory
basis. To advance that public policy, the fair housing laws require housing
providers to allow disabled persons the use of assistance animals. By way
of example:
A blind applicant for rental housing wants live in a dwelling
unit with a seeing eye dog. The building has a no pets policy.
It is a violation of [federal law] for the owner or manager of the
apartment complex to refuse to permit the applicant to live in
the apartment with a seeing eye dog because, without the
seeing eye dog, the blind person will not have an equal
opportunity to use and enjoy a dwelling.
24 C.F.R. § 100.204(b), ex. 1 (2019).
The majority contravenes federal, state, and municipal public policy
and holds that, as a matter of state common law, a housing provider is
now required to deny a disabled person, including a blind person, access
to housing whenever another tenant might experience head-cold
symptoms in response to the assistance animal when the other tenant
entered into a lease agreement prior in time. The majority’s holding is not
supported by the common law and is contrary to the letter and spirit of
the fair housing laws. I respectfully dissent.
I.
Federal, state, and municipal fair housing laws provide the context
for the resolution of Cohen’s claims, so I begin there.
A.
It is the public policy of the United States “to provide . . . for fair
housing throughout the United States.” 42 U.S.C. § 3601 (2018). The
federal law applicable here is Title VIII of the Civil Rights Act of 1968, also
46
known as the Fair Housing Act (FHA). Originally, the FHA prohibited
discrimination on the basis of race, color, religion, or national origin in
certain housing-related transactions. See Tex. Dep’t of Hous. & Cmty.
Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. ___, ___, 135 S. Ct. 2507,
2516 (2015). In 1988, Congress passed the Fair Housing Amendments
Act (FHAA). Fair Housing Amendments Act of 1988, Pub L. No. 100–430,
102 Stat. 1619 (1988). The FHAA extends the FHA to handicapped
persons. See 42 U.S.C. § 3602(f) (defining “discriminatory housing
practice”). The FHA “broadly prohibits discrimination in housing
throughout the Nation.” Gladstone Realtors v. Village of Bellwood, 441
U.S. 91, 93, 99 S. Ct. 1601, 1605 (1979).
Handicapped persons under the FHAA are defined as (1) individuals
with “a physical or mental impairment which substantially limits one or
more . . . major life activities,” (2) individuals with “a record of having such
an impairment,” and (3) individuals who are “regarded as having such an
impairment.” 42 U.S.C. § 3602(h). While the FHAA uses the term
“handicap,” I use the term “disability” because the term “disability” has
been adopted by federal agencies and federal courts. See Bhogaita v.
Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1285 & n.2 (11th Cir.
2014); U.S. Dep’t of Hous. & Urban Dev. & U.S. Dep’t of Justice, Joint
Statement of the Department of Housing and Urban Development and the
Department of Justice: Reasonable Accommodations Under the Fair Housing
Act 1 n.2 (May 17, 2004) [hereinafter HUD & DOJ Joint Statement],
https://www.justice.gov/sites/default/files/crt/legacy/2010/12
/14/joint_statement_ra.pdf [https://perma.cc/2KSX-TMRM].
The FHAA makes it unlawful, as relevant here, for a housing
provider to refuse a disabled person’s request for accommodation “in rules,
policies, practices, or services, when such accommodations may be
47
necessary to afford such person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B); see 24 C.F.R. § 100.204(a). The act
covers all housing with several exceptions not applicable here. See 24
C.F.R. § 100.10; U.S. Dep’t of Hous. & Urban Dev., FHEO-2020-01,
Assessing a Person’s Request to Have an Animal as a Reasonable
Accommodation Under the Fair Housing Act 2 n.1 (Jan. 28, 2020)
[hereinafter HUD FHEO-2020-01 Notice], https://www.hud.gov/sites/
dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf [https://perma
.cc/CC29-BCHY] (“The Fair Housing Act covers virtually all types of
housing, including privately owned housing and federally assisted
housing, with a few limited exceptions.”).
To trigger a provider’s duty to provide a reasonable accommodation,
a disabled person must first make a request for accommodation. See
Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1122–23 (D.C. 2005). Upon
receiving a request for accommodation, a provider need not “immediately
grant” the request for accommodation. Bhogaita, 765 F.3d at 1285–86
(“The FHA does not demand that housing providers immediately grant all
requests for accommodation.”); Furbee v. Wilson, 144 N.E.3d 801, 807
(Ind. Ct. App. 2020). Instead, a provider has an “opportunity to make a
final decision” after “conduct[ing] a meaningful review to determine
whether the FHA requires the requested accommodation.” Bhogaita, 765
F.3d at 1286 (quoting Prindable v. Ass’n of Apartment Owners, 304
F. Supp. 2d 1245, 1258 (D. Haw. 2003)).
A housing provider can deny a requested accommodation on the
ground there is not a disability-related need for accommodation or on the
ground the requested accommodation is not reasonable. See HUD & DOJ
Joint Statement at 7. With respect to this latter ground, an accommodation
is not reasonable “if it would impose an undue financial and administrative
48
burden on the housing provider or it would fundamentally alter the nature
of the provider’s operations.” Id.; accord Schwarz v. City of Treasure
Island, 544 F.3d 1201, 1220 (11th Cir. 2008); Giebeler v. M & B Assocs.,
343 F.3d 1143, 1157 (9th Cir. 2003); Sabal Palm Condos. of Pine Island
Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1281 (S.D. Fla. 2014). “In
determining whether the reasonableness requirement has been met, a
court may consider the accommodation’s functional and administrative
aspects, as well as its costs.” Groner v. Golden Gate Gardens Apartments,
250 F.3d 1039, 1044 (6th Cir. 2001); see Bryant Woods Inn, Inc. v. Howard
County, 124 F.3d 597, 604 (4th Cir. 1997).
The FHAA vests a housing provider with the sole authority to
determine whether an accommodation should be allowed or refused. See
Talley v. Lane, 13 F.3d 1031, 1034 (7th Cir. 1994) (“Thus, it is within the
[defendant]’s discretion to find that individuals with a history of
convictions for property and assaultive crimes would be a direct threat to
other tenants and to deny their applications.” (Emphasis added.)). In
making the determination, a provider may and should consider the
interests of affected tenants. See id.; Hollis v. Chestnut Bend Homeowners
Ass’n, 760 F.3d 531, 541–42 (6th Cir. 2014) (“[T]he burden that the
requested modification would impose on the defendant (and perhaps on
persons or interests whom the defendant represents) must be weighed
against the benefits that would accrue to the plaintiff.”); Scoggins v. Lee’s
Crossing Homeowners Ass’n, 718 F.3d 262, 272 (4th Cir. 2013) (“In
enacting the FHAA, Congress made clear that the health and safety of
other persons are relevant factors in determining whether a person or
entity violated the FHAA.”); Groner, 250 F.3d at 1046. The landlord is not
required to sacrifice the interests of third parties on the altar of reasonable
accommodation. See Temple v. Gunsalus, No. 95-3175, 1996 WL 536710,
49
at *2 (6th Cir. 1996) (“[Third parties’] rights did not have to be sacrificed
on the altar of ‘reasonable accommodation.’ ”). But the final decision to
grant or refuse a requested accommodation is left with a provider and is
nondelegable. See, e.g., Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d
597, 602 (4th Cir. 2010) (explaining “compliance with the [Americans with
Disabilities Act (ADA)] and FHA . . . is ‘nondelegable’ ”); United States v.
Dawn Props., Inc., 64 F. Supp. 3d 955, 962 (S.D. Miss. 2014) (explaining
it is the responsibility of a housing provider “to ensure compliance with
the FHA and the ADA” since this “duty [is] non-delegable”).
If a housing provider denies a requested accommodation, the
disabled person may file suit against the landlord for discrimination. If
the evidence shows the provider wrongly denied a requested
accommodation, the disabled person may recover actual and punitive
damages and attorney’s fees and costs. 42 U.S.C. § 3613(c)(1)–(2) (“In a
civil action . . . if the court finds that a discriminatory housing practice
has occurred or is about to occur, the court may award to the plaintiff
actual and punitive damages . . . [and] a reasonable attorney’s fee and
costs.”). The landlord is liable for a wrongful refusal of a requested
accommodation without regard to the landlord’s intent. See Bangerter v.
Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) (explaining “a
plaintiff need not prove the malice or discriminatory animus of a defendant
to make out a case of intentional discrimination”); 24 C.F.R. § 100.5(b)
(stating “unlawful housing discrimination . . . may be established by a
practice’s discriminatory effect, even if not motivated by discriminatory
intent”).
The FHAA does make available to a housing provider affirmative
defenses in response to a suit arising under the FHAA. The law provides
that nothing in the act “requires that a dwelling be made available to an
50
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.” 42 U.S.C. § 3604(f)(9); see
Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225 (11th Cir. 2016) (“[T]he
direct threat exception described in section 3604(f)(9) is an affirmative
defense.”); Velez v. Coral Gate W. Condo. Ass’n, No. 1:18-CV-24931, 2019
WL 2568856, at *3 (S.D. Fla. 2019) (“The ‘direct threat’ exception is an
affirmative defense for circumstances in which it may be legitimate to
protect other residents.”); Bos. Hous. Auth. v. Bridgewaters, 898 N.E.2d
848, 856 (Mass. 2009).
The FHAA does not give tenants a cause of action to compel a
housing provider to deny a disabled person’s request for accommodation
or a cause of action to seek damages arising out of the landlord’s decision
to grant a disabled person’s request for accommodation. By its own terms,
the FHAA affords a private cause of action to any “aggrieved person.” 42
U.S.C. § 3613(a)(1)(A). An “ ‘[a]ggrieved person’ includes any person who
—(1) claims to have been injured by a discriminatory housing practice; or
(2) believes that such person will be injured by a discriminatory housing
practice that is about to occur.” Id. § 3602(i)(1)–(2) (emphasis added). A
provider’s decision to grant a disabled person’s request for accommodation
is, by definition, not a discriminatory housing practice. Thus, a tenant in
the same building who is adversely affected by a landlord’s decision to
grant a request for accommodation has no cause of action under the
FHAA.
B.
It is also the public policy of the State of Iowa and the City of Iowa
City to protect the right of disabled persons to have fair access to housing.
The Iowa Civil Rights Act (ICRA) and the City of Iowa City Human Rights
51
Code make it unlawful for a housing provider to engage in discriminatory
housing practices against disabled persons. See Iowa Code § 216.2(5)
(2017) (“ ‘Disability’ means the physical or mental condition of a person
which constitutes a substantial disability . . . .”); id. §§ 216.8–.8A (making
it unlawful to engage in discriminatory housing practices); Iowa City, Iowa,
Code § 2-1-1 (2019) (defining disability, in part, as “[t]he physical or
mental impairment of a person which substantially limits one or more of
such person’s major life activities”); id. §§ 2-3-5 to -6 (making it unlawful
to engage in discriminatory housing practices).
Like the FHAA, state and municipal law prohibit a landlord from
refusing a disabled person’s request for reasonable accommodations. See
Iowa Code § 216.8A(3)(c)(2) (“[D]iscrimination includes . . . [a] refusal to
make reasonable accommodations in rules, policies, practices, or services,
when the accommodations are necessary to afford the person equal
opportunity to use and enjoy a dwelling.”); Iowa City, Iowa, Code § 2-3-
6(E)(2) (mirroring Iowa Code § 216.8A(3)(c)(2)).
Like the FHAA, state and local law place financial responsibility for
a wrongful refusal of a requested accommodation on the housing provider.
See Iowa Code § 216.17A(6) (stating “if the district court finds that a
discriminatory housing or real estate practice has occurred or is about to
occur, the district court may award or issue to the plaintiff” “[a]ctual and
punitive damages,” “[r]easonable attorney’s fees,” and “[c]ourt costs”); Iowa
City, Iowa, Code § 2-4-6(H) (“Payment to the complainant of damages
caused by the discriminatory or unfair practice . . . may include actual
damages, emotional distress damages, front pay, court costs and
reasonable attorney fees.”).
Like the FHAA, state and municipal law provide the landlord with
an affirmative defense against an action arising under state and municipal
52
law where the accommodation poses a “direct threat to the health or safety
of other persons.” Iowa Code § 216.8A(3)(e) (“Nothing in this subsection
requires that a dwelling be made available to a person whose tenancy
would constitute a direct threat to the health or safety of other persons or
whose tenancy would result in substantial physical damage to the property
of others.”); Iowa City, Iowa, Code § 2-3-6(E)(4) (mirroring Iowa Code
§ 216.8A(3)(e)).
Like the FHAA, nothing in state or local law gives affected tenants a
cause of action to compel a housing provider to deny a disabled person’s
request for accommodation or a cause of action to challenge and seek
damages arising out of the landlord’s decision to grant a disabled person’s
request for accommodation.
Unlike the FHAA, the ICRA specifically addresses the use of
assistance animals. The general assembly amended the ICRA to explicitly
allow for the use of an “assistance animal” as a reasonable
accommodation. See Iowa Code § 216.8B (2020). Under the new law,
“ ‘Assistance animal’ means an animal that qualifies as a reasonable
accommodation under the federal Fair Housing Act.” Id. § 216.8B(1)(a).
The new law provides, “A landlord shall waive lease restrictions and
additional payments normally required for pets on the keeping of animals
for the assistance animal or service animal of a person with a disability.”
Id. § 216.8B(2). The new law imposes criminal liability for interference
with the right to use an assistance animal. Id. § 216.8B(4) (“A person who
knowingly denies or interferes with the right of a person with a disability
under this section is, upon conviction, guilty of a simple misdemeanor.”).
53
C.
The specific accommodation at issue in this case involves the waiver
of a no-pets provision in a lease agreement to allow a disabled person the
use of an emotional support animal on premises.
There are two types of assistance animals: (1) service animals,
and (2) other trained or untrained animals that do work,
perform tasks, provide assistance, and/or provide therapeutic
emotional support for individuals with disabilities . . . .
Persons with disabilities may request a reasonable
accommodation for service animals and other types of
assistance animals, including support animals, under the
FHA.
HUD FHEO-2020-01 Notice at 1; see Iowa Code § 216C.11 (making it
unlawful to deny or interfere with the right of a person to use a “service
animal”); Id. § 216.8B (providing rights for persons to the use of an
“assistance animal”).
The majority draws a distinction between disabled persons who use
service animals and disabled persons who use emotional support animals,
concluding the former are entitled to greater accommodations. The
majority does so to escape the rationale of its own opinion, which
necessarily requires housing providers to exclude blind persons when an
allergic tenant is prior in time. However, the majority’s distinction is itself
contrary to controlling authority. Under the fair housing laws, the duty to
provide reasonable accommodation does not distinguish between service
animals and assistance animals. See HUD FHEO-2020-01 Notice at 5
(“For support animals and other assistance animals that may be necessary
in housing, although the ADA does not provide for access, housing
providers must comply with the FHA, which does provide for access.”); see
also Iowa Code § 216.8B(1)(a) (requiring accommodation for assistance
animals); Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v.
Taylor, 892 F. Supp. 2d 1268, 1285 (D. Haw. 2012) ([T]he Court considers
54
the development of the FHA and state law to include not only ‘service
animals,’ but ‘assistance animals’ as reasonable accommodations.”); Fair
Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., 778 F. Supp. 2d
1028, 1036 (D.N.D. 2011) (“[T]he Court finds the FHA encompasses all
types of assistance animals regardless of training, including those that
ameliorate a physical disability and those that ameliorate a mental
disability.”); Wilkison v. City of Arapahoe, 926 N.W.2d 441, 449 (Neb. 2019)
(“Unlike [the ADA], the FHA does not set forth minimum regulatory
requirements for animals to qualify as a reasonable accommodation.
Under a ruling by the U.S. Department of Housing and Urban
Development, emotional support animals do not require task-specific
training.” (footnote omitted)). The fact that the animal in this case is an
emotional support animal rather than a service animal is immaterial to
the outcome.
A landlord’s waiver or modification of a no-pets policy to allow a
disabled person the use of an emotional support animal is a per se
reasonable accommodation. This is true of federal law. See 24 C.F.R.
§ 100.204(b), ex. 1; HUD FHEO-2020-01 Notice at 12 (stating when the
assistance animal is one “commonly kept in households,” such as a dog
or cat, “then the reasonable accommodation should be granted”); see also
Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 110 (3d Cir. 2017)
(“A reasonable accommodation under the Fair Housing Act may include
the use of an emotional support animal in one’s own home, despite the
existence of a rule, policy or law prohibiting such an animal.”); Bhogaita,
765 F.3d at 1289 (holding resident’s emotional support animal was a
reasonable accommodation under the FHA); Bryant Woods, 124 F.3d at
604 (“[E]ven though a prohibition of pets in apartments is common, facially
neutral, and indeed reasonable, the FHA requires a relaxation of it to
55
accommodate a hearing dog for a deaf person because such an
accommodation does not unduly burden or fundamentally alter the nature
of the apartment complex.”); Baird v. 1600 Church Rd. Condo. Ass’n, No.
17-4792, 2017 WL 5570333, at *4 (E.D. Pa. Nov. 17, 2017) (“An emotional
support dog can constitute a reasonable accommodation for purposes of
the FHA.”); Bone v. Vill. Club, Inc., 223 F. Supp. 3d 1203, 1218 (M.D. Fla.
2016) (stating “an alteration to an association’s no-pet policy [to allow a
tenant an assistance animal is] generally considered a reasonable
accommodation”); Castellano v. Access Premier Realty, Inc., 181 F. Supp.
3d 798, 807 (E.D. Cal. 2016) (finding waiver of no-pets policy for an
emotional support cat was a reasonable accommodation under the FHA);
Warren v. Delvista Towers Condo. Ass’n, 49 F. Supp. 3d 1082, 1087 (S.D.
Fla. 2014) (“[T]his Court holds that an emotional support animal as defined
by the FHA is a reasonable accommodation.”); Petty v. Portofino Council of
Coowners, Inc., 702 F. Supp. 2d 721, 731 n.8 (S.D. Tex. 2010) (“[S]ervice
dogs are a common example of a reasonable accommodation for people
with disabilities.”). This is true of state law as well. See Iowa Code
§ 216.8B(2) (“A landlord shall waive lease restrictions and additional
payments normally required for pets on the keeping of animals for the
assistance animal or service animal of a person with a disability.”).
II.
Before directly addressing Cohen’s claim, it is necessary to provide
context to this suit. While Cohen and 2800 are nominally adverse parties,
they each seek the same substantive policy goal: to restrict the use of
assistance animals in housing contrary to current understanding of the
fair housing laws as set forth above. Cohen acknowledges this in her brief,
stating her proposed first-in-time rule “will necessitate the denial of
requests for accommodating emotional support [animals] that are made
56
after the allergic tenant begins their tenancy.” Because of their shared
substantive policy goal, Cohen and 2800 present this case in a largely
nonadversarial manner that has obscured the relevant facts, claims, and
issues.
Both parties question the need for and the efficacy of emotional
support animals. Cohen notes the “therapeutic value of emotional support
animals is still controversial.” Cohen cites a study for the proposition that
there is no empirically supported theoretical framework justifying the
therapeutic uses for animal therapy. For its part, 2800 states the benefit
of an emotional support animal is it “purportedly allows a person with a
mental health disability to function better in society or in some area of
their life” and states “the science is mixed on whether emotional support
animals are actually effective.” (Emphasis added.)
Both parties assail the increased use of emotional support animals.
Cohen argues that “emotional support animals have proved to be subject
to widespread abuse.” The evidence in support of her argument was
provided by 2800’s leasing and property manager, Jeffrey Clark. Jeffrey
Clark testified about the large percentage increase in the number of
persons requesting the use of assistance animals. Jeffrey Clark testified
that when he tries to enforce the no-pets rule, tenants frequently provide
certification several days later that the pet is an assistance animal.
Both parties agree “that the legal standards that govern disabilities
appear in practice to have been significantly watered down.” The evidence
in support of Cohen’s claim was provided, again, by 2800’s leasing and
property manager. Jeffrey Clark testified about how a landlord cannot
enforce a no-pets policy because people can easily obtain a certification for
an assistance animal. He testified it took him only minutes to obtain a
57
certification for the use of an emotional support animal from an Internet
site.
Both parties agree that assistance animals impose costs on the
landlord. Cohen argues that assistance animals increase costs for the
landlord for “carpet cleaning and allergen removal.” She argues full
restoration of an apartment “due to animal waste and urine costs [are] on
average between $2200 and $2500.” The evidence in support of her claim
was provided, again, by 2800’s leasing and property manager. Jeffrey
Clark testified at trial regarding all the reasons why assistance animals
should not be allowed in no-pets housing. 2800 notes Jeffrey Clark
testified about the “actual cost to deal with an animal in a unit.” He
testified regarding the costs of ameliorating and remedying the effects of
animals in the apartment units he manages, including the costs of
cleaning the units, repairing the units, and pest control.
Both parties agree that a housing provider’s waiver to allow an
assistance animal on premises is a reasonable accommodation under the
fair housing laws. Cohen acknowledges that the recent amendments to
the ICRA “eliminate any uncertainty that emotional support/assistance
animals are indeed appropriate in general as a reasonable accommodation
under the Iowa Civil Rights Act.” 2800 acknowledges that “emotional
support animals and service animals . . . are, essentially, a per se
reasonable accommodation.”
Although the parties agree that a housing provider’s waiver of a no-
pets provision to allow an assistance animal on premises is a reasonable
accommodation under the fair housing laws, they request that this court
change the law because of the burdens placed on cotenants and landlords.
Cohen claims the “burdens to co-tenants and landlords have been
ignored.” She argues that “there is wide[s]pread abuse of the right to
58
emotional support animals” and that this court should resolve this knotty
problem and “establish precedent balancing the benefits and burdens of
emotional support animals among all affected parties.” Cohen proposes a
complex framework in which tenants with allergies should be required “to
provide the same type of documentation required of a disabled tenant.”
She notes the documentation must be from a healthcare provider. If the
allergy is strong enough, she argues, then the landlord should deny the
disabled person’s request for accommodation if the allergic tenant was first
in time. Nowhere does Cohen explain how she derives this complex
regulatory scheme from her common law claims for breach of contract and
breach of the implied warranty of quiet enjoyment.
Similarly, 2800 acknowledges the relevant law but argues the
“current rule that animals are essentially per se reasonable
accommodations is clearly wrong.” 2800 requests that this “[c]ourt should
do away with any notion that an animal is a per se or an easy
accommodation to make.” 2800 goes on to argue that “[l]andlords who
wish to market their buildings and units to people with allergies and
people who don’t want to live with animals should be able to do so without
the requirement that the promises they’ve made will be broken.” As with
Cohen, 2800 does not explain how its defense against Cohen’s claims
would allow this court to do away with the fair housing laws.
The parties have not presented an adversarial legal case. They have
jointly presented a legislative briefing seeking to change the fair housing
laws to take into account the escalating costs imposed on allergic
cotenants and landlords due to the increased use of emotional support
animals. I do not minimize the parties’ concern. Federal, state, and
municipal law, however, countenance this result and require housing
providers to allow disabled persons the use of emotional support animals
59
as an accommodation to provide fair and nondiscriminatory access to
housing. The parties concede this. “To whatever extent that the use of
[assistance] animals has gotten out of hand, or the needs of allergic people
have not been prioritized, the political branches must do the necessary
balancing.” Doe v. U.S. Sec’y of Transp., 17-CV-7868 (CS), 2018 WL
6411277, at *11 n.9 (S.D.N.Y. Dec. 4, 2018).
III.
The majority accepts the parties’ nonadversarial and joint invitation
to rewrite federal, state, and municipal fair housing laws. In so doing, the
majority largely ignores the claims and the law actually at issue and
instead engages in legislative balancing. I disagree with this approach.
We are not bound to give effect to the parties’ nonadversarial stipulations
regarding liability and defenses where those stipulations are contrary to
law. See, e.g., State v. Aumann, 236 N.W.2d 320, 322 (Iowa 1975)
(“Stipulations as to the law do not settle for the court what the law is, and
consequently are of no validity.”); In re Estate of Clark, 181 N.W.2d 138,
142 (Iowa 1970) (explaining stipulations of fact are binding on the parties
but stipulations as to legal issues are not binding on this court if
“unreasonable or against good morals or [contrary to] sound public
policy”); see also Mech-Con Corp. v. West, 61 F.3d 883, 887 (Fed. Cir. 1995)
(“We may disregard a stipulation when it is ‘inadvertent, contrary to law,
contrary to fact, or made without proper authority.’ ” (quoting Kaminer
Constr. Corp. v. United States, 488 F.2d 980, 988 (Fed. Cir. 1973))).
A.
To prevail on her claim for breach of contract, Cohen was required
“to prove: (1) the existence of a contract, (2) the terms and conditions of
the contract, (3) that [she] has performed all the terms and conditions
required under the contract, (4) the defendant’s breach of the contract in
60
some particular way, and (5) that [she] has suffered damages as a result
of defendant’s breach.” Royal Indem. Co. v. Factory Mut. Ins., 786 N.W.2d
839, 846 (Iowa 2010).
1.
The general principles of contract interpretation and construction
are well established. “A cardinal rule of contract construction or
interpretation is the intent of the parties must control. The important time
frame for determining this intent is the time the contract was executed.”
Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999) (citation
omitted). “[E]xcept in cases of ambiguity, [the parties’ intent] is determined
by what the contract itself says.” DuTrac Cmty. Credit Union v. Radiology
Grp. Real Estate, L.C., 891 N.W.2d 210, 216 (Iowa 2017) (quoting Iowa R.
App. P. 6.904(3)(n)). “[W]ords in an agreement are to be interpreted in
accordance with their generally accepted meaning.” Farmers & Merchs.
Sav. Bank v. Vandenberg Chevrolet-Buick, Ltd., 523 N.W.2d 211, 213 (Iowa
1994).
The contract at issue is the lease agreement. Cohen contends 2800
breached paragraph 53 of the lease agreement by authorizing Clark to
have a small dog named Cali as an emotional support animal. Paragraph
53 of the lease agreement provides, “No pets are allowed in the building or
on the Premises at any time.” The same provision also provides,
“Reasonable accommodations accepted.”
The contract must be interpreted and construed in light of the fair
housing laws, which inform and circumscribe the parties’ respective rights
under the lease agreement. See Home Bldg. & Loan Ass’n v. Blaisdell, 290
U.S. 398, 429–30, 54 S. Ct. 231, 237 (1934) (“[T]he laws which subsist at
the time and place of the making of a contract, and where it is to be
performed, enter into and form a part of it, as if they were expressly
61
referred to or incorporated in its terms. This principle embraces alike
those which affect its validity, construction, discharge, and enforcement.”
(quoting Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1866))); Miller v.
Marshall County, 641 N.W.2d 742, 751 (Iowa 2002) (stating there is a
“presumption that parties incorporate applicable statutes into their
contracts”); Amana Soc’y v. Colony Inn, Inc., 315 N.W.2d 101, 111–12 (Iowa
1982) (en banc) (stating “existing laws [are] read into contracts in order to
fix obligations as between the parties”).
The term “reasonable accommodation” is a term of art within the
meaning of the fair housing laws. See Berardelli v. Allied Servs. Inst. of
Rehab. Med., 900 F.3d 104, 118 n.10 (3d Cir. 2018) (noting an
accommodation is a “term[] of art” within the meaning of the FHA);
Workman v. Frito-Lay, Inc., 165 F.3d 460, 466 (6th Cir. 1999) (stating
“reasonable accommodation” is a “term[] of art” within the meaning of the
ADA). Where, as here, a contract uses a legal term, the term must be
interpreted and construed in accord with its generally accepted legal
usage. See R.T. Vanderbilt Co. v. Hartford Accident & Indem. Co., 156 A.3d
539, 647 (Conn. App. Ct. 2017) (“Words with a fixed legal or judicially
settled meaning must be presumed to have been used in that sense.”
(quoting Keeper’s, Inc. v. ATGCKG Realestate, LLC, 80 A.3d 88, 93 (Conn.
App. Ct. 2013))), aff’d, 216 A.3d 629 (Conn. 2019); Sandt v. Energy Maint.
Servs. Grp. I, LLC, 534 S.W.3d 626, 636 (Tex. App. 2017) (“Words used by
the parties in a technical sense or which have become terms of art through
routine usage in a particular context should be construed consistent with
that usage.”); Restatement (Second) of Contracts § 202, at 86 (Am. Law
Inst. 1981) (stating “where language has a generally prevailing meaning, it
is interpreted in accordance with that meaning” and “words of art are given
their technical meaning”); 11 Richard A. Lord, A Treatise on the Law of
62
Contracts § 32:4, at 682 (4th ed. 2012) (“Technical terms or words of art
will be given their technical meaning.”).
In light of the applicable law, the terms of the lease agreement are
not ambiguous. An accommodation is unreasonable within the meaning
of the fair housing laws only “if it would impose an undue financial and
administrative burden on the housing provider or it would fundamentally
alter the nature of the provider’s operations.” HUD & DOJ Joint Statement
at 7; accord Schwarz, 544 F.3d at 1220; Giebeler, 343 F.3d at 1157; Sabal,
6 F. Supp. 3d at 1281. Under the FHAA, the waiver of a no-pets provision
does not fundamentally alter the nature of the dwelling. As the Sixth
Circuit explained,
One would naturally say that a blind tenant requests an
accommodation from an apartment’s “no pets” policy if the
tenant seeks an exemption for a seeing eye dog. But one
would not naturally say that a tenant with allergies requests
an accommodation from an apartment’s “pet friendly” policy if
the tenant seeks a total pet ban. The former tenant seeks a
one-off adjustment; the latter seeks a complete change. The
word “accommodation” includes the first, but not the second,
request.
Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483, 490 (6th Cir. 2019) (first
emphasis added) (citation omitted) (distinguishing between “moderate
adjustments” and “fundamental changes” to housing policies), cert.
denied, ___ U.S. ____, ___ S. Ct. ___ (2020). Thus, the Department of
Justice, the Department for Housing and Urban Development, federal
courts, and Iowa law all conclude the waiver of a no-pets provision to allow
a disabled person to keep an assistance animal on premises is per se a
reasonable accommodation. See Iowa Code § 216.8B(2) (2020); 24 C.F.R.
§ 100.204(b); HUD FHEO-2020-01 Notice at 12; see also Revock, 853 F.3d
at 110; Bhogaita, 765 F.3d at 1289; Bryant Woods, 124 F.3d at 604; Baird,
2017 WL 5570333 at *4; Bone, 223 F. Supp. 3d at 1218; Castellano, 181
63
F. Supp. 3d at 807; Warren, 49 F. Supp. 3d at 1087; Petty, 702 F. Supp.
2d at 731 n.8.
The reasonable accommodation language in the contract put Cohen
on notice that 2800 would make exceptions to its no-pets policy as part of
a reasonable accommodation for another tenant. There was no
qualification in the lease agreement restricting the types of assistance
animals that would be allowed on premises. To the extent Cohen assigned
a different meaning and construction to the term “reasonable
accommodation” that excluded the possibility cats and dogs would be
allowed on premises, that meaning and construction was unique to her.
Cohen’s undisclosed but more limited understanding of the contract
is a unilateral mistake that cannot support her claim for liability against
2800. See Peak v. Adams, 799 N.W.2d 535, 544 (Iowa 2011) (stating in
determining mutual intention, “we look to what the parties did and said,
rather than to some secret, undisclosed intention they may have had in
mind” (quoting Waechter v. Aluminum Co. of Am., 454 N.W.2d 565, 568
(Iowa 1990))); First Nw. Nat’l Bank v. Crouch, 287 N.W.2d 151, 153 (Iowa
1980) (stating “[t]he intention expressed in the instrument prevails over
the secret intention of” a party); Restatement (Second) of Contracts § 151
cmt. a, at 383–84 (“An erroneous belief as to the contents or effect of a
writing that expresses the agreement is, however, a mistake. Mistake
alone, in the sense in which the word is used here, has no legal
consequences.”); id. cmt. b, at 384 (“The rules stated in this Chapter do
not draw the distinction that is sometimes made between “fact” and “law.”
They treat the law in existence at the time of the making of the contract as
part of the total state of facts at that time. A party’s erroneous belief with
respect to the law, as found in statute, regulation, judicial decision, or
elsewhere, or with respect to the legal consequences of his acts, may,
64
therefore, come within these rules.”); 5 Margaret N. Kniffin, Corbin on
Contracts § 24.5, at 15 (Joseph M. Perillo ed., rev’d ed. 1998) (“Inasmuch
as the parties may have attached different meanings and may have had
different intentions at the time of formation of the contract, the court must
determine which party’s meaning and intention should prevail.”).
This has long been the law of Iowa. See Bakke v. Bakke, 242 Iowa
612, 618, 47 N.W.2d 813, 817 (1951) (“The maxim ‘ignorantia legis non
excusat’ is stated throughout the books as an elementary proposition; and
when you look for the doctrine of law on this subject, you find it to be that
equity will not relieve against a mistake of law.” (quoting Pierson v.
Armstrong, 1 Iowa 282, 286 (1855))); Peterson v. McManus, 187 Iowa 522,
537, 172 N.W. 460, 466 (1919) (“If it was his intention to claim that he
used it in some unusual sense, the plaintiff had the right to object that he
could not be bound by the undisclosed purpose to use the word in a sense
which differed from what plaintiff would naturally understand by the use
of that word.”); Spencer v. Millisack, 52 Iowa 31, 34, 2 N.W. 606, 609 (Iowa
1879) (“In a suit upon the contract its real, and not its supposed, meaning
must prevail.”).
For these reasons, I would hold Cohen failed to prove 2800 breached
the lease agreement when it accommodated Clark’s request for an
emotional support animal as it was expressly allowed to do under the plain
language of the lease agreement.
2.
The majority rejects these principles of contract interpretation and
concludes 2800 breached the lease agreement by accommodating Clark’s
request because Cali posed a direct threat to Cohen’s health and safety
within the meaning of 42 U.S.C. § 3604(f)(9). I respectfully disagree.
65
First, the majority confuses a claim arising under the fair housing
laws with Cohen’s contract claim. The question presented is not whether
2800 could have successfully defended a fair housing claim brought by
Clark had 2800 denied the requested accommodation. The question
presented is the meaning of the contract at “the time the contract was
executed.” Hartig Drug Co., 602 N.W.2d at 798; see Peak, 799 N.W.2d at
544; Restatement (Second) of Contracts § 202 cmt. b, at 87. On the
relevant question, as a matter of federal, state, and municipal housing law,
the meaning of reasonable accommodation is well established and
generally accepted. The waiver of a no-pets provision is per se a reasonable
accommodation.
Second, the majority misapprehends the fair housing laws. The
direct-threat provision does not change the meaning of reasonable
accommodation. The direct-threat provision serves as an affirmative
defense for a housing provider to avoid liability for denying a requested
accommodation. See Hunt, 814 F.3d at 1225 (“But the direct threat
exception described in section 3604(f)(9) is an affirmative defense . . . .”);
Dadian v. Village of Wilmette, 269 F.3d 831, 840–41 (7th Cir. 2001) (“[W]e
conclude that a public entity that asserts the reason it failed to
accommodate a disabled individual was because she posed a direct threat
to safety bears the burden of proof on that defense at trial.”); Velez, 2019
WL 2568856, at *3 (“The ‘direct threat’ exception is an affirmative defense
for circumstances in which it may be legitimate to protect other
residents.”); Simmons v. T.M. Assocs. Mgmt., Inc., 287 F. Supp. 3d 600, 604
n.1 (W.D. Va. 2018) (same); Township of West Orange v. Whitman, 8 F.
Supp. 2d 408, 428 (D.N.J. 1998) (same); Bos. Hous. Auth., 898 N.E.2d at
856 (same).
66
In other words, the direct-threat provision is an exception to the
duty to provide reasonable accommodation; it does not change the
meaning of what is a reasonable accommodation. See 42 U.S.C.
§ 3604(f)(9); Iowa Code § 216.8A(3)(e) (2017); Iowa City, Iowa, Code § 2-3-
6(E)(4); Hernandez v. Golf Course Estates Home Owners Ass’n, ___ F. Supp.
3d ___, ___, 2020 WL 1821011, at *6 (D. Or. Apr. 10, 2020) (“The FHAA
does not require that an accommodation be made if it ‘would constitute a
direct threat to the health or safety of other individuals . . . .’ ” (quoting 42
U.S.C. § 3604(f)(9))); Velez, 2019 WL 2568856, at *3 (“The FHA carves out
an exception for those who pose a ‘direct threat to the health or safety’ of
others.” (quoting 42 U.S.C. § 3604(f)(9))). As one court explained,
[I]f a handicapped tenant is a direct threat to the health and
safety of other tenants, the landlord is obligated to either
reasonably accommodate the tenant’s handicap or show that
no reasonable accommodation will eliminate or acceptably
minimize the risk posed by the handicapped tenant. When
the landlord shows that no reasonable accommodation will
curtail the risk, its duty to accommodate ceases.
Arnold Murray Constr., L.L.C. v. Hicks, 621 N.W.2d 171, 175 (S.D. 2001).
Thus, even if Cali posed a direct threat to Cohen, it does not change the
generally accepted meaning of reasonable accommodation as used in the
parties’ contract. It simply means 2800 could have denied Clark’s
requested accommodation and asserted the direct-threat provision as an
affirmative defense in the event Clark had sued 2800 for discrimination
under the fair housing laws.
Third, and related, the majority’s construction of the direct-threat
provision is contrary to the purpose of the statute. Section 3604(f)(9) is
“intended to establish an affirmative defense available to landlords . . . in
actions against them to enforce the FHAA, not to provide a basis for claims
such as those asserted by . . . neighbors.” Township of West Orange, 8 F.
67
Supp. 2d at 428. But here the majority does just that. The majority
creates a private cause of action for tenants to enforce the fair housing
laws against disabled persons and landlords who accommodate them. If
the lease agreement at issue in this case contained only the no-pets
provision without the reasonable accommodation provision, 2800 still
would have been obligated under the fair housing laws to consider Clark’s
request for accommodation. Under the majority’s interpretation of the fair
housing laws, however, Cohen would nonetheless be entitled to sue Clark
for having an assistance animal and 2800 for allowing Clark to have an
assistance animal on premises because the animal posed a direct threat
to Cohen within the meaning of the statute. The majority has weaponized
the statutory affirmative defense into a cause of action for neighbors to sue
disabled persons and landlords. The lack of any statutory right or remedy
in the ICRA for tenants affected by a disabled person’s exercise of his or
her rights counsels strongly against creating a de facto private cause of
action allowing the same. See Shumate v. Drake Univ., 846 N.W.2d 503,
516 (Iowa 2014) (holding “there is no implied private right of action under
Iowa Code chapter 216C” where the legislature specifically afforded private
rights of action under other provisions of the ICRA).
Fourth, it is also not clear that the direct-threat analysis is even
applicable to the facts and circumstances of this case. Federal and state
enforcement guidelines provide that a “determination that an assistance
animal poses a direct threat of harm to others . . . must be based on an
individualized assessment that relies on objective evidence about the
specific animal’s actual conduct.” U.S. Dep’t of Hous. & Urban Dev., FHEO-
2013-01, Service Animals and Assistance Animals for People with
Disabilities in Housing & HUD-Funded Programs 3 (April 25, 2013)
[hereinafter HUD FHEO-2013-01 Notice] (emphasis added),
68
https://archives.hud.gov/news/2013/servanimals_ntcfheo2013-01.
pdf [https://perma.cc/ AKA3-2425]; see Iowa Civil Rights Comm’n, ICRC
Factsheet: Assistance Animals and the Fair Housing Act; Service Animals
and the Americans with Disabilities Act (Rev. Sept. 2015) [hereinafter ICRC
Factsheet], https://icrc.iowa.gov/sites/default/files/publications/2015
/AssistanceAnimalsFactSheet.pdf[https://perma.cc/QLD2-CV5K]. This
requires an “individualized assessment that is based on objective evidence
about the specific animal in question, such as the animal’s current
conduct or a recent history of overt acts.” Friedel v. Park Place Cmty. LLC,
2017 WL 3666440, at *3 (S.D. Fla. 2017) (quoting Preamble to Final Rule,
Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed. Reg.
63834, 63837 (Oct. 27, 2008) [hereinafter Preamble]), aff’d, 747 F. App’x
775 (11th Cir. 2018) (per curiam).
Cohen does not ask that we consider Cali’s actual conduct or overt
acts. Instead, she asks that we consider Cohen’s physical reactions to
Cali’s mere presence. The guidelines prohibit a housing provider from
making categorical exclusions based on “[b]reed, size, and weight
limitations.” HUD FHEO-2013-01 Notice at 3; see ICRC Factsheet. But
here, Cohen asks us to make even larger categorical exclusions and
disallow all cats, dogs, and any other animal that creates “pet dander.”
Cohen’s categorical exclusions seem to fall outside the ambit of the direct-
threat provision.
Fifth, even assuming an allergic response to an assistance animal
could, under some circumstances, constitute a direct threat within the
meaning of section 3604(f)(9), Cohen failed to prove Cali posed a direct
threat to her health or safety within the meaning of the statute. In
determining whether a party has proved a direct threat, the statutory
exemption must be construed narrowly to advance the purposes of the fair
69
housing laws. See Bangerter, 46 F.3d at 1503–04 (explaining the
legislative history and purpose of the FHAA and finding section 3604(f)(9)
and other “exceptions to the FHAA’s prohibitions on discrimination should
be narrowly construed”); Hogar Agua y Vida en el Desierto, Inc. v. Suarez–
Medina, 36 F.3d 177, 181 (1st Cir. 1994) (stating “ambiguous exemptions
from FHA liability are to be narrowly construed”); Laflamme v. New
Horizons, Inc., 605 F. Supp. 2d 378, 392 (D. Conn. 2009) (“The FHA,
regulations, and legislative history . . . make clear that [the direct-threat
provision] has a very narrow reach.”); United States v. City of Jackson, 318
F. Supp. 2d 395, 414 (S.D. Miss. 2002) (stating the direct-threat provision
is “a narrow exemption to coverage”), aff’d, 359 F.3d 727 (5th Cir. 2004).
A “direct threat” is “a significant risk of substantial harm.” HUD &
DOJ Joint Statement at 4. The risk of substantial harm must be more than
remote or speculative. See Warren, 49 F. Supp. 3d at 1087 (“[T]he
presumption in favor of a reasonable accommodation is such that ‘the Fair
Housing Act requires the existence of a significant risk—not a remote or
speculative risk.’ ” (quoting Preamble, 73 Fed. Reg. at 63837)). The party
seeking to invoke the direct-threat exemption must have “reliable,
objective evidence that a person with a disability poses a direct threat
before” a reasonable accommodation can be denied. HUD & DOJ Joint
Statement at 5.
Cohen did not meet the high burden of establishing Cali posed a
significant risk of substantial harm to her health. Although the parties
stipulated Cohen “is allergic to dogs and cats” and suffered “allergic
attacks” due to Cali’s presence in the building, the parties did not stipulate
to the nature of the attacks. The evidence shows, and Cohen herself stated
“there is a difference between [her allergic responses to] cat[s] and dog[s].”
70
Cohen can “actually tell the difference between a cat and a dog” depending
on the allergy symptoms she experiences. Cohen testified,
So with a cat, within seconds of exposure my throat begins to
close up, and for the past few years I’ve had to carry around
EpiPens due to the severity of it, where with dogs, my nose
just gets stuffy and, you know, my sinuses get swollen upon
exposure.
She testified Cali caused her to experience “head cold” symptoms, but
minus the “foggy” feeling that makes it “difficult to concentrate” when one
has a cold. Her symptoms included stuffy nose, postnasal drip, constant
coughing, and excess mucus in her throat. An affidavit from Cohen’s
allergist further clarified the distinction. The affidavit states Cohen suffers
from allergies to “cat and dog hair and dander.” It also states Cohen has
“cat and dog sensitivities.” Finally, it states Cohen “has a history of
particularly severe allergic reactions including oropharyngeal swelling
when exposed to cats.”
There is no evidence in the record showing Cohen’s exposure to
dogs, generally, or Cali, specifically, caused Cohen to suffer anything other
than cold-like symptoms. Allergy-induced cold-like symptoms in response
to the presence of an emotional support animal does not amount to
“substantial harm” within the meaning of the fair housing laws. See HUD
& DOJ Joint Statement at 4; see also Maubach v. City of Fairfax, No. 1:17-
cv-921, 2018 WL 2018552, at *6 n.7 (E.D. Va. Apr. 30, 2018) (“If Mr. B
were a service animal under Title II or III of the ADA, as he is not on this
record, then allergies would not be sufficient on their own to justify barring
Mr. B from public spaces.”); Entine v. Lissner, No. 2:17-cv-946, 2017 WL
5507619, at *6, *8 n.6 (S.D. Ohio Nov. 17, 2017) (“Allergies and fear of
dogs are not valid reasons for denying access or refusing service to people
using service animals.”). Thus, even if the direct-threat provision were
71
relevant to the disposition of Cohen’s claim for breach of contract, she has
not proved a direct threat to her health and safety within the meaning of
section 3604(f)(9).
The majority’s analysis of the direct-threat provision might have
some purchase if 2800 were invoking the provision as an affirmative
defense against a claim brought by Clark under the fair housing laws in
the event 2800 had denied Clark’s request for accommodation. But the
majority’s analysis of the direct-threat provision provides no basis for
holding 2800 is liable to Cohen under a theory of contract when 2800
granted a reasonable accommodation as expressly allowed in the text of
the parties’ agreement.
3.
An additional consideration militates against the majority’s
interpretation of the lease agreement. Consider the implications of the
majority’s opinion. If 2800’s decision to grant Clark’s request to keep an
assistance animal on premises was not a “reasonable accommodation” as
a matter of contract law, then 2800 breached the same provision of the
lease agreement with respect to each of the tenants in the building. This
is true without regard to whether those tenants had any allergies to Clark’s
assistance animal because they too contracted to live in a no-pets
apartment building subject to reasonable accommodation. While those
tenants may have suffered only nominal damages, if any, they still would
be able to establish breach as a matter of law. That result to me seems
untenable, and it is unaddressed by the majority opinion.
B.
Cohen also contends 2800 breached her right to quiet enjoyment of
her dwelling when 2800 failed to deny Clark’s request for an
accommodation under federal, state, and municipal laws intended to
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protect the rights of disabled persons to access housing on a fair and
nondiscriminatory basis.
A claim for breach of quiet enjoyment is a limited one. “It is generally
recognized that an eviction [or constructive eviction] is necessary to
constitute a breach of warranty of title or for quiet enjoyment.” Kendall v.
Lowther, 356 N.W.2d 181, 190 (Iowa 1984) (quoting Eggers v. Mitchem,
240 Iowa 1199, 1201–02, 38 N.W.2d 591, 592 (1949)); see also United
States v. G & T Enters., L.C., 978 F. Supp. 1232, 1242 (N.D. Iowa 1997)
(requiring actual or constructive eviction for a breach of a quiet enjoyment
provision in a lease); Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C.,
796 N.W.2d 886, 895 (Iowa 2011) (“When a tenant is actually evicted from
the leased premises, a breach of the covenant of quiet enjoyment has
occurred.”); K.A. Drechsler, Annotation, What Amounts to Constructive
Eviction Which Will Support Action for Breach of Covenant of Warranty or for
Quiet Enjoyment, 172 A.L.R. 18, at 20–21 (1948) (“While it is generally
recognized that an eviction is necessary to constitute a breach of a
covenant of warranty or for quiet enjoyment . . . the modern rule supported
by the overwhelming weight of authority is to the effect that it is not
essential that there be an actual expulsion of the grantee, a constructive
eviction being sufficient.” (footnotes omitted)).
Cold-like symptoms do not constitute a constructive eviction. The
implied warranty protects only against conditions that materially affect the
health and safety of tenants. It sets a minimum standard to protect
tenants against conditions that render premises uninhabitable or
unusable. That is not this case. Cohen failed to prove her claim.
C.
There is an additional, and more fundamental, reason why Cohen’s
common law claims fail. The heart of the issue is whether the law of
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contract and quiet enjoyment require a landlord to aggressively deny the
statutory rights of disabled persons and risk substantial civil and criminal
liability. The majority says yes. The relevant precedents say no. In accord
with these precedents, I would hold the doctrine of prevention by
government regulation excused any breach of contract or breach of the
warranty of quiet enjoyment under the circumstances presented.
Generally, where a law, regulation, order, or any other government
action affects a party’s performance in such a way that it is impracticable
for him both to comply with the regulation or order and to perform, then
the party’s failure to perform is discharged so long as the party made a
good faith effort to perform in accord with the contract and the relevant
law, regulation, order, or government action. See Molo Oil Co. v. River City
Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (“A party breaches
a contract when, without legal excuse, it fails to perform any promise which
forms a whole or a part of the contract.” (Emphasis added.)); Restatement
(Second) of Contracts § 264 cmt. b, at 333 (stating that the government
“regulation or order must directly affect a party’s performance in such a
way that it is impracticable for him both to comply with the regulation or
order and to perform” and that a party who seeks to justify
nonperformance due to limitations imposed by law “must have observed
the duty of good faith and fair dealing”). One court has called this “the
doctrine of prevention by governmental regulation or order.” Union Cty.
Utils. Auth. v. Bergen Cty. Utils. Auth., 995 F. Supp. 506, 516 (D.N.J. 1998).
In a recent case, this court recognized that a landlord’s breach of
the duty of quiet enjoyment and breach of the landlord tenant act would
be excused where the landlord was acting in accord with a governmental
command:
74
There is ample authority for the proposition that when a
landlord takes action pursuant to an order of a public official,
a breach of the covenant of quiet enjoyment does not occur.
We think the same reasoning applies when a claim is made
that the landlord violates provisions of the [Iowa Uniform
Residential Landlord and Tenant Act] when acting pursuant
to an order by municipal authorities.
Lewis v. Jaeger, 818 N.W.2d 165, 179–80 (Iowa 2012) (citations omitted).
The doctrine this court recognized in Lewis is grounded in public
policy. As the United States Court of Appeals for the Tenth Circuit
explained, discharging a party’s contractual liability based on compliance
with regulatory commands is in accord with public policy:
[A]s a matter of policy, individuals and corporations who
cooperate with local regulatory agencies and comply with the
letter and spirit of legally proper regulations, environmental
or otherwise, are to be encouraged.
Int’l Minerals & Chem. Corp. v. Llano, Inc., 770 F.2d 879, 887 (10th Cir.
1985). This is true so long as the party seeking refuge under the doctrine
acted in good faith. See id. (“There is, we recognize, a limit to the extent
to which an individual can seek refuge in the context of a case such as
this by cooperating with the government: ‘any action by the party claiming
excuse which causes or colludes in inducing the governmental action
preventing his performance would be in breach of good faith and would
destroy his exemption.’ ” (quoting N.M. Stat. Ann. § 55–2–615 cmt. 10
(1978))); McCullough v. Houar, 141 Iowa 342, 343–44, 117 N.W. 1110,
1111 (1908) (finding no breach of the covenant of quiet enjoyment where
a landlord made a good faith effort to remedy issues caused by another
tenant).
Here, 2800 acted in good faith both to comply with the fair housing
laws and to honor its contractual obligations to Cohen. 2800 and Cohen
entered into a lease agreement in which both parties acknowledged 2800
might make “reasonable accommodations” within the meaning of the fair
75
housing laws. It is generally understood that a modification of a no-pets
provision to allow for the use of an assistance animal is a reasonable
accommodation within the meaning of the fair housing laws. Clark
requested 2800 allow him to keep Cali on premises as an emotional
support animal. Upon receiving Clark’s documented request, 2800
notified all tenants in the building it was going to allow a dog to live on the
premises and asked tenants with any issues or allergies to notify 2800.
Cohen responded and notified 2800 she was allergic to dogs. 2800 then
contacted the Iowa Civil Rights Commission (ICRC) for guidance. The
ICRC advised 2800 it should not refuse Clark’s request for
accommodation. Upon the advice and guidance of the ICRC, 2800 granted
Clark’s requested accommodation and initiated an interactive process with
Clark and Cohen to find solutions that accommodated both parties.
Through this interactive process the parties adopted several measures to
limit Cohen’s exposure to Cali. This included designating separate
entrances, stairways, and hallways for the parties. 2800 also purchased
an air purifier for Cohen’s apartment. 2800’s efforts did not eliminate
Cohen’s allergy symptoms. In an effort to further ameliorate Cohen’s
allergy symptoms, 2800 explored other measures, including the
installation of airlock doors. 2800 determined, and the parties agree, the
installation cost of the doors, $81,715.92, was unreasonable and not
required under the circumstances. The parties do not dispute 2800 acted
in good faith to comply with the law and ameliorate the conditions for
Cohen.
While 2800’s ameliorative efforts were not successful and Cohen
may have suffered actual harm due to the presence of Clark’s emotional
support animal in the building, the harm was without legal injury at
common law. “At common law, this sort of ‘factual harm without a legal
76
injury was damnum absque injuria and provided no basis for relief.’ ”
United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 1587
(2020) (Thomas, J., concurring) (quoting F. Andrew Hessick, Standing,
Injury in Fact, & Private Rights, 93 Cornell L. Rev. 275, 280–81 (2008)).
The maxim recognizes that, in some circumstances, private interest must
give way to a superior public right. See United States v. Willow River Power
Co., 324 U.S. 499, 508, 510, 65 S. Ct. 761, 766–67 (1945) (“Where these
interests conflict they are not to be reconciled as between equals, but the
private interest must give way to a superior right . . . .”).
Under this doctrine, Cohen’s harm cannot support a claim for
liability under a theory of contract or implied warranty because she
suffered no legal injury. Stated differently, Cohen is not entitled to
compensation from 2800 because 2800 committed no legal wrong. 2800
acted in good faith to comply with the command of federal, state, and
municipal law. It did so under the threat of substantial civil liability and
criminal liability for the failure to comply. Cohen’s harm was caused not
by 2800’s conduct but by the dictates of federal, state, and local law.
Because of this, she has suffered no legally cognizable injury. See
Hendricks v. DSW Shoe Warehouse, Inc., 444 F. Supp. 2d 775, 780 (W.D.
Mich. 2006) (“In addition, a breach of contract claim must be rejected
where the breach, if any, is ‘damnum absque injuria.’ ”); Keller v. Clark
Equip. Co., 474 F. Supp. 966, 969 (D.N.D. 1979) (“Injury is usually but not
always contemporaneous with the wrongful act. It is the conjunction of
damage and wrongful act that creates a cause of action for tort or contract,
and there is no cause of action if either damage or wrong is wanting.”);
Palmer v. Del., Lackawanna. & W. R.R., 120 A. 668, 669 (Pa. 1923) (“No
cause of action arises from the doing of a lawful act or the exercise of a
legal right, if done or exercised in a lawful and proper manner; the
77
resulting damage, if any, being damnum absque injuria.” (quoting 1
Corpus Juris 965)); Ayala v. City of Corpus Christi, 507 S.W.2d 324, 326
(Tex. Civ. App. 1974) (“An action will not lie for an injury resulting from
the mere exercise of a legal right, or from the commission of a lawful action
in a proper manner. The doctrine of damnum absque injuria (damage
without injury) applies, and the loss is not cognizable in the law.”).
The fact that there was no formal government order to grant Clark’s
request for accommodation does not change the analysis. See Int’l
Minerals, 770 F.2d at 887 (“Second, as a matter of law, government policy
need not be explicitly mandatory to cause impracticability.”). 2800 was
exposed to significant risk in the event it denied Clark’s request for
accommodation and could not carry its burden to prove an affirmative
defense. Under federal, state, and municipal law, Clark, the Department
of Justice, the ICRC, or the Iowa City Human Rights Commission could
have pursued an enforcement action or statutory action against 2800.
2800 could have been forced to pay: compensatory damages, including
out-of-pocket expenses; noneconomic damages for humiliation, mental
anguish, and psychological injuries; punitive damages; attorney’s fees;
civil penalties; and additional penalties up to $100,000. See 42 U.S.C.
§§ 3612–3614; Iowa Code § 216.17A(6) (2017); Iowa City, Iowa, Code § 2-
4-6(H). In addition, the revised ICRA imposes criminal liability for a
knowing violation of state fair housing law. See Iowa Code § 216.8B(4)
(2020). Thus, while it is true 2800 could have denied Clark’s request for
accommodation, a party has no obligation to break the law or exhaust all
legal challenges before being discharged from liability. See Directions, Inc.
v. New Prince Concrete Constr. Co., 491 A.2d 1347, 1349 (N.J. Super. Ct.
App. Div. 1985) (explaining compliance with government order could still
serve as a defense even though the party could have legally challenged the
78
validity of the order); Restatement (Second) of Contracts § 264 cmt. a, at
331 (“The fact that it is still possible for a party to perform if he is willing
to break the law and risk the consequences does not bar him from claiming
discharge.”).
2800 was subject to competing demands. Port side was Scylla, a
six-headed monster of federal, state, and municipal housing laws.
Starboard side was Charybdis, the whirlpool of Cohen’s common law
rights. The majority holds a landlord must sail directly toward one or the
other: the landlord can refuse the accommodation and be eaten by
enforcement actions and discrimination lawsuits brought by federal
authorities, state authorities, municipal authorities, and disabled persons;
or the landlord can grant the accommodation and drown in absolute
liability to all tenants injured by the landlord’s waiver of the no-pets
provision. The relevant precedents say the landlord can successfully
navigate the strait by acting in good faith to comply with the fair housing
laws and its contractual obligations. I would adhere to those precedents
and hold 2800 is not liable to Cohen under the circumstances presented.
IV.
In addition to not being supported by the law of contract or quiet
enjoyment, the majority’s holding itself is a prohibited discriminatory
housing practice that violates the letter and spirit of the fair housing laws.
The FHAA provides that “any law of a State, a political subdivision,
or other such jurisdiction that purports to require or permit any action
that would be a discriminatory housing practice under this subchapter
shall to that extent be invalid.” 42 U.S.C. § 3615; see Wis. Pub. Intervenor
v. Mortier, 501 U.S. 597, 604, 111 S. Ct. 2476, 2481 (1991) (“[S]tate laws
that ‘interfere with, or are contrary to the laws of congress, made in
79
pursuance of the constitution’ are invalid.” (quoting Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 211 (1824))).
The FHA provides relief not only from policies adopted and actions
taken with a discriminatory intent, but also from the application of facially
neutral standards that have an unlawful discriminatory effect upon a
protected class. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425
(2d Cir. 1995); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d
926, 933–34 (2d Cir. 1988), abrogated on other grounds by MHANY Mgmt.,
Inc. v. County of Nassau, 819 F.3d 581, 617 (2d Cir. 2016). “A disparate
impact analysis examines a facially-neutral policy or practice . . . for its
differential impact or effect on a particular group.” Huntington Branch,
844 F.2d at 933. To establish a prima facie case under this theory, a
plaintiff must show: “(1) the occurrence of certain outwardly neutral
practices, and (2) a significantly adverse or disproportionate impact on
persons of a particular type produced by the defendant’s facially neutral
acts or practices.” Gamble v. City of Escondido, 104 F.3d 300, 306 (9th
Cir.1997) (quoting Pfaff v. U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739,
745 (9th Cir. 1996)).
Here, the majority adopts Cohen’s facially neutral first-in-time rule,
the same rule 2800 proposed at trial, that requires providers to deny a
disabled person’s request for accommodation. The parties concede this
will result in the denial of housing to disabled persons. Indeed, that is the
parties’ intended result, which the majority willingly adopts. Cohen wants
to limit the use of emotional support animals because “there is
wide[s]pread abuse of the right to emotional support animals.” 2800 does
not want to have to comply with the fair housing laws so it can market its
property as pet free. 2800 argues this “court should do away with any
notion that an animal is a per se or an easy accommodation to make.”
80
2800 goes on to argue that “[l]andlords who wish to market their buildings
and units to people with allergies and people who don’t want to live with
animals should be able to do so.”
By adopting the parties’ proposed first-in-time rule, the majority has
adopted a rule of law that “require[s] or permit[s] an[] action that would be
a discriminatory housing practice” and that is preempted under 42 U.S.C.
section 3615. 42 U.S.C. § 3615; see Toledo Fair Hous. Ctr. v. Farmers Ins.
Grp. of Cos., 61 F. Supp. 2d 681, 683 (N.D. Ohio 1999) (noting laws are
preempted where the law “is itself a ‘discriminatory housing practice.’ ”
(quoting 42 U.S.C. § 3615)).
The First Circuit addressed a similar issue in Astralis Condominium
Ass’n v. Secretary, United States Department of Housing & Urban
Development, 620 F.3d 62 (1st Cir. 2010). In that case, two disabled
persons sought an accommodation that allowed them exclusive access to
two of ten handicapped parking spaces closest to their units. Id. at 64–
65. The ten handicapped parking spaces were considered common
elements and available on a first-come-first-served basis. Id. at 64. The
condominium association denied the requested accommodation, relying
on the local condominium law and the association’s private agreement,
both of which required the consent of all the condominium unit owners
before transferring common elements. Id. at 69–70. The First Circuit
concluded the association’s reliance on the local law and association
agreement was not grounds for denying the rights of the disabled to access
housing. The court explained the association was “duty bound” not to
enforce local law “if doing so would either cause or perpetrate unlawful
discrimination.” Id. at 69. The court also quickly rejected and derided the
association’s contract argument, stating, “[A]dopting Astralis’s view would
create a sinkhole that would swallow the general rule and cripple the
81
effectiveness of the FHAA. To say that private agreements under a state’s
condominium statute are capable of trumping federal anti-discrimination
law verges on the ridiculous. We disavow that proposition.” Id. at 70.
The same rationale applies here with greater force where Cohen’s
claimed right arises from the very lease term from which Clark seeks
accommodation. There is nothing in the fair housing laws that allows a
housing provider to deny a requested accommodation on the ground that
the disabled person is second in time. The rule is an arbitrary amendment
to the fair housing laws. The court in Entine rejected this first-in-time rule
in a similar case arising under the ADA. In that case, Entine lived in a
sorority house with her service animal. 2017 WL 5507619, at *1. Another
member of the sorority, Goldman, claimed to be allergic to the service
animal. Id. Goldman suffered from Crohn’s disease, and she claimed the
allergies exacerbated her Crohn’s disease and caused her significant pain
and distress. Id. Because the matter involved a university, the conflict
between the parties was presented to the university’s ADA Coordinator,
Lissner. “Lissner determined that ‘the resolution for this impasse [was]
based on who secured their lease first. Lissner decided that whoever
secured their lease second would have the choice to move out of the
[sorority] house, or stay in the house without their accommodation.’ ” Id.
at *5. Lissner determined Entine and her service animal would have to
vacate the sorority house. Id. Entine challenged this finding in district
court. The district court concluded the first-in-time rule was improper,
calling it an “arbitrary, ‘disability-neutral standard.’ ” Id. at *9. The
district court granted Entine’s request for a preliminary injunction and
restrained the university from removing her from the house. Id. at *11.
Even if not expressly preempted by federal law as a discriminatory
housing practice, the majority’s first-in-time rule is certainly contrary to
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the spirit of federal, state, and municipal fair housing laws. The majority
rule creates financial incentives for cotenants to sue disabled persons
seeking reasonable accommodations and landlords granting reasonable
accommodations. Under the majority’s rule, the cotenant can usurp the
statutory authority granted to a housing provider and demand the provider
deny a requested accommodation under the threat of a lawsuit all without
bearing any of the financial consequences if the denial is in fact wrong. If
the cotenant prevails on her claim, the disabled person (remember, Cohen
sued Clark, and the majority’s theory of liability would extend to Clark)
and the housing provider must pay damages. If the cotenant loses, she is
out only the small claims filing fee. By placing this asymmetrical financial
risk on disabled persons and housing providers, the majority’s rule
discourages disabled persons from seeking reasonable accommodations
and discourages landlords from granting reasonable accommodations.
This is contrary to the spirit of the fair housing laws.
V.
The majority accommodates the nominally adverse parties’ joint
request to amend the fair housing laws to require, as a matter of common
law, that housing providers must deny a disabled person’s request to use
an assistance animal to obtain equal access housing where a cotenant
with contrary interests is first in time. The majority’s holding is not
supported by the common law and is contrary to the letter and spirit of
the fair housing laws. For these reasons, I respectfully dissent.
Oxley, J., joins this dissent.