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IOWA SUPREME COURT BRINGS COMMON SENSE TO THE EMOTIONAL SUPPORT
ANIMAL ISSUE
By
Eric Glazer, Esq.
Published April 26, 2021
The Supreme Court of Iowa came out with a big
decision regarding emotional support animal law that I’m hoping
Florida eventually follows as well. Karen Cohen vs. David Clark
And 2800-1 LLC. This case involves a tenant with pet allergies
who deliberately moved into an apartment building due to its
no-pets policy. However, later on, a neighboring tenant sought a
waiver of the no-pets policy for his emotional support dog, and
the landlord didn’t want to say no and get sued. As a result,
the landlord tried to accommodate both of them. He allowed the
emotional support dog on the premises while requiring the two
tenants to use different stairways and provided an air purifier
for the tenant with pet allergies; but the tenant still suffered
from allergic attacks from the dog. She then 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 and he had no choice but to allow the emotional
support dog under the Iowa Civil Rights Act.
So this landlord was dammed if he did and
dammed if he didn’t. If he allowed the dog – the tenant with
allergies sues him. If he denies the dog, the tenant with the
need for the emotional support dog sues him. Interestingly
enough, Florida and Iowa have virtually the exact same provision
in their state law and also the federal law says: the
association or the landlord may: deny a reasonable accommodation
request for an emotional support animal if such animal poses a
direct threat to the safety or health of others or poses a
direct threat of physical damage to the property of others,
which threat cannot be reduced or eliminated by another
reasonable accommodation.
That’s exactly the facts in this Iowa case.
This emotional support dog was posing a threat to the health and
safety of someone who already lived there and was allergic to
the emotional support dog.
So what did the court decide? The landlord’s
accommodation of the emotional support dog was not reasonable
because the tenant with pet allergies had priority in time (she
was there first) and the dog’s presence posed a direct threat to
her health. We also conclude that the tenant suffering allergic
attacks was entitled to 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. 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.
Finally…..a court took someone else’s health
into consideration…and didn’t just rubber stamp the request for
the emotional support animal. If Florida were to follow this
Iowa decision…..and I hope it does......my thinking is that I
would want to send out a survey now to all of the owners in my
no pet condo, asking them if they have any medical condition
like allergies, that would jeopardize their health, should an
emotional support animal seek to move next door to them. And if
they answered --- and they said they can’t have an animal live
next door to them because it would affect their health, the
condo would be able to rely on that survey and deny the animal.
Why should the health of an owner who already
lives there suffer, because a new owner wants to move into a “no
pet” community with their emotional support animal? If the
language of the law is to have any meaning – then the
association should be able to rely on the survey and say no to
the person who wants to move into a no pet community if it would
affect the health of a pre-existing owner. I think the decision
of the Iowa Supreme Court is spot on. What do you think?
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at 11:00 a.m. each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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